United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
FARGO VA HEALTH CARE SYSTEM,
Fargo, ND, Employer
__________________________________________

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

Docket No. 19-1204
Issued: February 25, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 9, 2019 appellant filed a timely appeal from an April 3, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the April 3, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues is whether appellant has met her burden of proof to expand the acceptance of
the claim to include additional conditions, surgery, and related disability commencing August 7,
2015 causally related to her accepted April 20, 2015 employment injury.
FACTUAL HISTORY
On April 27, 2015 appellant, then a 51-year-old housekeeping aid, filed a traumatic injury
claim (Form CA-1) alleging that on April 20, 2015 she twisted her right foot and ankle when she
fell while in the performance of duty. OWCP accepted the claim for a right ankle sprain and paid
appellant wage-loss compensation on the supplemental rolls from June 17 through July 11, 2015.
On April 23, 2015 Dr. John G. Mickelson, an osteopath and employing establishment
physician, obtained a history of appellant sustaining an injury on April 20, 2015 when she slipped
and fell. He noted that she was experiencing back pain and had previously received trigger point
injections in her upper back. Dr. Mickelson diagnosed right foot pain, back and neck pain, and
resolving elbow pain.
In a May 19, 2015 statement, appellant recounted that on April 20, 2015 she had twisted
her right foot and had fallen on her back, striking her left elbow. She applied ice on her elbow and
back following the incident.
On June 22, 2015 Dr. Bradley R. Olson, a podiatrist, performed a Brostrom repair of the
right ankle.
In a treatment note dated June 29, 2015, Dr. Daniel Ostlie, a Board-certified surgeon,
indicated that appellant had a postoperative fall on June 27, 2015. He noted that she had a history
of ankle problems and diagnosed a right foot and ankle sprain/strain.
On July 13, 2015 appellant returned to full-time modified employment.
Dr. Mickelson noted on July 14, 2015 that appellant had resumed work following an
April 20, 2015 employment injury. He diagnosed tendinitis of the left elbow, wrist, and forearm
and advised that he was unsure whether it was related to the employment injury. On July 17, 2015
Dr. Mickelson obtained a history of appellant experiencing pain in her left arm extending to her
wrist after folding laundry at work. He advised that she had lost strength in her arms and had also
experienced numbness and tingling a few days earlier. Dr. Mickelson diagnosed right foot pain,
left arm pain, transient intermittent weakness and paresthesia to her arms. He advised that he had
consulted with appellant’s supervisor about her work restrictions.
A July 22, 2015 magnetic resonance imaging (MRI) scan of the brain revealed moderate
chronic brain atrophy, but no acute process. An MRI scan of the cervical spine showed moderate
central canal stenosis and neural foraminal narrowing at C5-6 and C6-7 due to disc protrusions
and spurring, mild central canal stenosis from disc protrusion at C4-5, and possible minimal cord
edema. An MRI scan of the lumbar spine dated July 23, 2015 revealed mild degenerative disc
disease at L3-4 and possibly L4-5. A computerized tomography (CT) scan obtained July 23, 2015
showed moderate degenerative disc findings at C5-6 and C6-7.
2

In a report dated July 23, 2015, Dr. Sneh N. Patel, who specializes in family medicine,
obtained a history of appellant tripping and falling at work on April 20, 2015 landing on her left
elbow, right hip, and right arm. He discussed her complaints of left elbow pain radiating into her
neck, left leg spasm, headaches, unsteadiness, weakness, and lightheadedness. Dr. Patel diagnosed
neuropathy and gait instability.
On July 24, 2015 Dr. Abdul A. Baker, a Board-certified neurosurgeon, performed an
anterior cervical discectomy and decompression at C4-5, C5-6, and C6-7.
Appellant was admitted to the hospital for rehabilitation on July 29, 2015. In a July 30,
2015 hospital consultation, Dr. Steven Clemenson, a Board-certified internist, discussed
appellant’s history of slipping and falling on a wet floor at work on April 20, 2015, twisting her
ankle, straining her neck, and hitting her left elbow. He diagnosed cervical radiculopathy after a
fusion, muscle spasms, attention deficit disorder, anxiety disorder, fibromyalgia, and chronic
anemia.
In an August 18, 2015 discharge summary, Dr. Bangalore Vijayalakshmi, a Board-certified
physiatrist, diagnosed status post an April 20, 2015 employment injury, status post cervical
myelopathy, and status post a July 24, 2015 cervical discectomy and decompression at C4-5, C56, and C6-7. She noted a history of appellant’s symptoms having begun after she fell at work on
April 20, 2015 striking her left elbow and injuring her back. Dr. Vijayalakshmi indicated that
appellant had experienced numbness in her left arm moving into her right arm while performing
modified employment, and that an MRI scan had showed disc protrusions and spurring at C5-6
and C6-7 causing moderate central canal stenosis and neuroforaminal stenosis treated with surgery
on July 24, 2015. She advised that appellant had symptoms of cognitive impairment subsequent
to her April 20, 2015 employment injury and that an MRI scan of the brain had revealed no acute
process, but chronic moderate brain atrophy.
On August 20, 2015 Dr. Shaun K. Christenson, a Board-certified neurologist, evaluated
appellant for recent facial pain. He noted that she reported cognitive dysfunction which she
attributed to a fall. Dr. Christenson diagnosed chronic migraine and a history of right facial pain.
In a September 9, 2015 work capacity evaluation (Form OWCP-5c), Dr. Olson indicated
that appellant was not working due to a neck injury. In a progress report of even date, he diagnosed
left foot capsulitis that might require surgery in the future.
On September 16, 2015 Dr. Vijayalakshmi provided a history of appellant’s April 20, 2015
employment injury and subsequent right ankle and cervical surgery. She advised that appellant
had experienced cognitive deficits after her fall confirmed by a speech/language evaluation and
had been recently discharged from an acute inpatient rehabilitation unit. Dr. Vijayalakshmi found
that neurosurgery had determined that appellant was disabled from employment. She diagnosed
left elbow and neck pain, gait ataxia, cervical myeloradiculopathy, a right ankle sprain post
surgery, cervical surgery, and cognitive deficits after an April 20, 2015 injury. Dr. Vijayalakshmi
opined that appellant’s symptoms had “started as a result of her work injury on April 20, 2015.”
On September 29, 2015 appellant filed a claim for compensation (Form CA-7) for
disability for the period from August 7 to 29, 2015.

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In a development letter dated October 13, 2015, OWCP informed appellant of the
definition of a recurrence of disability and noted that it had not received medical evidence
establishing that her cervical condition was causally related to her April 20, 2015 employment
injury. It requested an opinion from a physician explaining how her disability resulted from her
employment injury and provided a questionnaire for her completion. OWCP afforded appellant
30 days to submit the necessary information.
Thereafter, OWCP received an October 6, 2015 report from Dr. Olson, who discussed
appellant’s complaints of continued right foot and ankle problems. Dr. Olson found that she had
multifactorial pain affecting the foot and ankle and diagnosed peroneal tendinitis of the right lower
extremity, right tarsal tunnel syndrome, ankle instability, a right inversion sprain of the ankle, and
a gait abnormality. He noted that there was “still some concern that appellant ruptured her repair
after falling on it postoperatively.”
In a report dated October 20, 2015, Dr. Paulina J. Kunecka, a Board-certified internist and
neurologist, noted that her clinic had initially evaluated appellant in June 2014 for facial pain. She
found that appellant had intermittent trigeminal neuralgia with no clear trigger. Dr. Kunecka
diagnosed C2-3 neuropathy, right trigeminal neuralgia, migraine with aura, and chronic pain.
In an October 27, 2015 report, Dr. Gregory Hauge, a neuropsychologist, obtained a history
of appellant experiencing cognitive problems after she fell on April 20, 2015 fall while mopping
a floor. He diagnosed a possible concussion.
On October 30, 2015 Dr. Olson discussed appellant’s history of bilateral ankle and foot
problems and of falling after a Brostrom repair and possibly rupturing the repair. He diagnosed
ankle instability, right foot pain, and right peroneal tendinitis.
On November 6, 2015 Dr. Vijayalakshmi described appellant’s April 20, 2015 fall at work,
her subsequent right ankle surgery and development of numbness of the left arm, wrist, and right
upper extremity. She noted that appellant underwent an anterior discectomy and fusion at C4-5,
C5-6, and C6-7 with instrumentation. Dr. Vijayalakshmi advised that appellant had cognitive
difficulties after her fall. She opined that her April 20, 2015 fall “was the causation of all of her
above-mentioned symptoms.”
In a November 19, 2015 Form OWCP-5c, Dr. Olson found that appellant could perform
sedentary employment.
By decision dated November 23, 2015, OWCP found that appellant had not established a
recurrence of disability beginning July 17, 2015 causally related to her April 20, 2015 employment
injury as she did not establish a material change/worsening of the accepted employment-related
conditions.
Thereafter, OWCP received a November 19, 2015 report from Dr. Vijayalakshmi, who
reviewed the history of appellant’s April 20, 2015 employment injury and subsequent medical
treatment. Dr. Vijayalakshmi described appellant’s continued complaints of neck and upper back
pain with radiculopathy particularly on the left, low back pain with radiculopathy, weakness of the
upper and lower extremities, right foot pain and paresthesia, and cognitive deficits. She diagnosed
status post fall causing right foot and ankle pain treated with surgery, neck and back pain with
4

bilateral upper and lower extremity pain and paresthesia, cervical spine surgery, left elbow pain,
ongoing cognitive deficits, cervical myeloradiculopathy, and gait ataxia due to cervical
myelopathy status post fall. Dr. Vijayalakshmi opined that the April 20, 2015 fall had caused all
of appellant’s symptoms and injuries.
On December 17, 2015 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
Subsequently, OWCP received a July 23, 2015 report from Dr. Baker, who advised that
appellant had a history of multiple employment injuries. Dr. Baker evaluated her for an acute
onset of numbness, tingling, and weakness in the left upper extremity. He obtained diagnostic
studies and recommended a cervical discectomy and fusion from C4 to C7.
In a July 28, 2015 hospital consultation report, Dr. Vijayalakshmi evaluated appellant to
determine whether she required admission for rehabilitation. She provided the history of the
April 20, 2015 slip and fall and reviewed the diagnostic studies of record. Dr. Vijayalakshmi
diagnosed status post cervical discectomy and fusion and cervical myeloradiculopathy and
obtained a history of appellant’s symptoms beginning after an April 20, 2015 employment injury.
She recommended rehabilitation at the inpatient unit.
On July 29, 2015 Dr. Kunecka noted that appellant had fallen at work onto her left arm and
elbow the second week of July and subsequently experienced numbness and left arm pain.
Following cervical surgery, appellant had ataxia and difficulty ambulating. Dr. Kunecka noted
that appellant had also fallen in April 2015 injuring her right lateral ankle. She attributed
appellant’s ataxia to her cervical spine disease as she was in the postoperative period.
In a February 9, 2016 progress report, Dr. Vijayalakshmi reviewed the history of the
April 20, 2015 employment injury. She diagnosed pain in the neck and back with bilateral upper
and lower pain, paresthesia, and weakness, right foot and ankle pain, status post right ankle and
cervical spine surgery, bilateral elbow pain, cognitive deficits, gait ataxia, myofascial pain and
dysfunction syndrome, and lumbar spine degenerative disc disease and attributed the diagnosed
conditions to appellant’s fall.
An electromyogram performed by Dr. Vijayalakshmi on March 7, 2016 revealed slowing
of the left ulnar motor nerve across the elbow.3
In a March 29, 2016 form report, Dr. Emmet J. Kenney, Jr., a Board-certified psychiatrist,
diagnosed affective disorder and anxiety-related disorder. He advised that, prior to the injury,
appellant had abnormal attention span and impulse control, but had been able to work until she
was injured on the job. Dr. Kenney opined that appellant was unable to work and noted that pain
affected her ability to perform activities of daily living.

3

Dr. Vijayalakshmi, in an April 6, 2016 progress report, diagnosed low back pain, myofascial pain syndrome,
lumbar degenerative disc disease and musculoligamentous sprain/strain, and to rule out lumbar radiculopathy,
peripheral neuropathy, and entrapment syndrome.

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On April 7, 2016 Dr. David Beard, a Board-certified orthopedic surgeon, evaluated
appellant for left elbow pain after a fall at work on April 20, 2015. He diagnosed left elbow pain
and a history of a fall.
On April 29, 2016 OWCP requested that Dr. Michael M. Katz, a Board-certified orthopedic
surgeon serving as a district medical adviser (DMA), review the evidence and address whether
appellant’s anterior discectomy and fusion at C4-5, C5-6, and C6-7 was necessary to treat the
effects of her April 20, 2015 employment injury and whether it should expand acceptance of her
claim to include the additional conditions of cervical myelopathy with cord compression and
cervical instability at C4-5 and left ulnar neuropathy.
In a May 5, 2016 report, Dr. Katz advised that Dr. Mickelson’s reports failed to support
that appellant had sustained multiple trauma as found by Dr. Vijayalakshmi. He opined that
additional diagnoses and the July 24, 2015 spinal surgery were unrelated to the April 20, 2015
employment injury.
In a May 12, 2016 progress report, Dr. Vijayalakshmi indicated that appellant had multiple
syndromes after an April 20, 2015 employment injury. She advised that the injury had caused
“cervical instability for which she underwent cervical spinal surgery, injuries to her bilateral
elbows, worse on the left than the right, low back pain as well as lower limb symptoms in addition
to her bilateral ankle and feet pain/injuries.” Dr. Vijayalakshmi diagnosed employment-related
cervical spine instability postsurgery, left more than right bilateral elbow pain, bilateral foot and
ankle pain, pain in the neck, upper, and middle back, left cubital tunnel syndrome and ulnar
neuropathy, and status post ankle surgery. She also diagnosed sacroiliac (SI) joint dysfunction,
myofascial pain and dysfunction syndrome, lumbar degenerative disc disease and a
musculoligamentous sprain/strain, and cervicothoracic musculoligamentous sprain/strain. On
June 20, 2016 Dr. Vijayalakshmi advised that she was treating appellant for “symptoms status post
work injury of April 20, 2015.” She provided the same diagnoses.
In a July 5, 2016 progress report, Dr. Vijayalakshmi discussed appellant’s complaints of
worsening neck and upper and middle back pain. She diagnosed neck, upper and middle back pain
and intermittent bilateral upper extremity pain and paresthesia, slowing of the left ulnar motor
nerve velocity at the elbow, left elbow pain and low back pain after an April 20, 2015 employment
injury, SI joint dysfunction, myofascial pain and dysfunction syndrome, cervicothoracic
musculoligamentous sprain/strain, and ongoing cognitive deficits. Dr. Vijayalakshmi found that
appellant was unable to work and recommended that she seek disability from the Social Security
Administration (SSA).
A hearing was held on August 16, 2016. Counsel asserted that appellant had sustained an
injury to her cervical spine as a result of the April 20, 2015 employment injury. He advised that
appellant had not fallen in July 2015 as reported by a physician, noting that the date appeared to
be a transcription error. Appellant related that when she resumed work on July 13, 2015 sorting
and folding towels she had experienced left elbow pain and weakness moving into her neck.
On July 19, 2016 David J. Hanson, an anesthesiologist, diagnosed chronic cervicogenic
headache, cervical myofascial pain syndrome, and lumbago.

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By decision dated October 13, 2016, OWCP’s hearing representative affirmed the
November 23, 2015 decision.
On July 7, 2017 Dr. Vijayalakshmi advised that appellant was waiting for federal workers’
compensation to approve, as related to the employment injury, neck pain with bilateral upper
extremity pain and paresthesia, low back pain with lower limb symptoms, upper and middle back
pain, and cognitive deficits. She noted that appellant was also pursuing disability compensation
from SSA.
On October 6, 2017 OWCP advised Dr. Vijayalakshmi that it had accepted only a right
ankle sprain as employment related. It requested that she address whether the current diagnosed
conditions were causally related to the accepted employment injury and whether appellant required
work restrictions due to her accepted employment injury.
On October 11, 2017 counsel requested reconsideration. He submitted a September 7,
2017 report by Dr. Baker. Dr. Baker diagnosed cervical instability at C4-5 and a cord injury with
stenosis at C5-6 and C6-7, left ulnar neuropathy/elbow pain, and SI joint dysfunction due to the
April 20, 2015 fall at work.
By decision dated January 9, 2018, OWCP denied modification of its October 13, 2016
decision.
Thereafter, OWCP received a November 3, 2016 report from Dr. Baker. Dr. Baker noted
that appellant “underwent anterior cervical fusion over a year ago secondary to [a] work-related
injury and spinal cord injury due to work.” He discussed her complaints of continued upper
extremity numbness and tingling on the left side with S1 joint dysfunction. Dr. Baker advised that
appellant’s “fall occurred at work, which involved both involvement of her neck and SI joint.” He
found that she was “status post anterior cervical fusion and spinal cord compression due to [a]
work-related injury and SI joint instability probably secondary to the fall because she was
asymptomatic prior to that event.” Dr. Baker recommended a left SI joint fusion.
In a treating physician medical opinion statement form dated November 26, 2016,
Dr. Vijayalakshmi diagnosed fibromyalgia, chronic pain syndrome, and myofascial pain and
opined that appellant was disabled from employment. She provided the date of onset as
April 20, 2015.
On January 8, 2019 appellant requested reconsideration. She advised that she had
sustained a neck injury due to her April 20, 2015 employment injury, but it was not diagnosed
until July 2015. Appellant maintained that she was unable to work either at the employing
establishment or in the private employment that she concurrently held at the time of her accident.
By decision dated April 3, 2019, OWCP denied modification of its January 9, 2018
decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.5 Where an employee claims
that a condition not accepted or approved by OWCP was due to an employment injury, he or she
bears the burden of proof to establish that the condition is causally related to the employment
injury.6
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.7 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.8 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.9 For each period
of disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.10
The medical evidence 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, 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
claimed disability and the accepted employment injury.11
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.12 This is called a referee examination and OWCP will select a

4

Supra note 2.

5

Y.D., Docket No. 20-0097 (issued August 25, 2020); D.P., Docket No. 18-1439 (issued April 30, 2020); Amelia S.
Jefferson, 57 ECAB 183 (2005).
6

K.T., Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

7

20 C.F.R. §10.5(f); see J.T., Docket No. 19-1813 (issued April 14, 2020); Cheryl L. Decavitch, 50 ECAB
397 (1999).
8

Id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

9

20 C.F.R. § 10.5(f); J.M., Docket No. 18-0763 (issued April 29, 2020).

10

Id.

11

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996); see also T.T.,
Docket No. 18-1054 (issued April 8, 2020).
12

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

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physician who is qualified in the appropriate specialty and who has no prior connection with the
case.13
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of her request for claim expansion, appellant submitted reports dated August 18,
2015 to July 7, 2017 from Dr. Vijayalakshmi. In a September 16, 2015 progress report,
Dr. Vijayalakshmi indicated that appellant had injured her neck when she fell on April 20, 2015
and had also experienced cognitive defects following her injury. She diagnosed left elbow and
neck pain, gait ataxia, cervical myeloradiculopathy, a right ankle sprain, cervical surgery, and
cognitive defects. Dr. Vijayalakshmi attributed the diagnosed conditions to the accepted
employment injury. On November 19, 2015 she diagnosed bilateral upper and lower extremity
pain and paresthesia, cervical spine surgery, ongoing cognitive deficits, cervical
myeloradiculopathy, and gait ataxia due to the April 20, 2015 employment injury. In a May 12,
2016 progress report, Dr. Vijayalakshmi related that the accepted employment injury had caused
cervical instability requiring surgery and also injuries to the bilateral elbows and low back. She
diagnosed cervical spine stability post surgery, left more than right bilateral elbow pain, bilateral
foot and ankle pain, pain in the neck, upper, and middle back, left cubital tunnel syndrome and
ulnar neuropathy, and status post ankle surgery and attributed the conditions to the April 20, 2015
employment injury.
In a May 5, 2016 report, Dr. Katz advised that Dr. Mickelson’s reports failed to support
that appellant had sustained multiple trauma as found by Dr. Vijayalakshmi. He opined that
additional diagnoses and the July 24, 2015 spinal surgery were unrelated to the April 20, 2015
employment injury.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint an impartial medical specialist who shall make an
examination.14 The Board finds that a conflict exists between the appellant’s treating physician,
Dr. Vijayalakshmi and the DMA, Dr. Katz regarding whether the claim should be expanded to
include additional conditions, surgery, and related disability commencing August 7, 2015 causally
related to her accepted April 20, 2015 employment injury.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical specialist for resolution of the conflict in medical opinion evidence in accordance with
5 U.S.C. § 8123(a).15 The issue of whether the acceptance of appellant’s claim should be expanded
to include additional conditions must be resolved prior to determining whether appellant has met
her burden of proof to establish that she was disabled from work commencing August 7, 2015
causally related to her accepted April 20, 2015 employment injury and resultant surgery. After
13

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

14

See S.S., Docket No. 19-1658 (issued November 12, 2020); C.S., Docket No. 19-0731 (issued August 22, 2019).

15

S.M., Docket No. 19-0397 (issued August 7, 2019).

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this and other such further development as OWCP deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: February 25, 2021
Washington, DC

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

Janice B. Askin, 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
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 08-2061
Issued: June 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from an October 1, 2007 decision of the
Office of Workers’ Compensation Programs that denied his claims for compensation. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was totally
disabled for the periods November 17 to December 30, 2005, January 1 to April 30 and July 1 to
September 30, 2006.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 24, 2007, the
Board found that, by its September 28, 2005 decision, the Office properly refused to reopen
appellant’s case for further consideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a), that he failed to meet his burden of proof to establish that he was totally disabled for
the period December 1 to 15, 2004 and that the Office properly denied his April 19, 2006

reconsideration request.1 The law and the facts of the previous Board decision are incorporated
herein by reference.
On August 21, 2006 appellant filed a Form CA-2a, recurrence claim, alleging that he
sustained a recurrence of disability on November 17, 2005 as a result of work stoppage caused
by withdrawal of his limited-duty assignment. The employing establishment challenged the
claim, noting that appellant was assigned as a clerk on the small parcel and bundle sorter (SPBS)
machine but was unable to perform these duties and had not provided medical documentation
when asked. Appellant had also filed CA-7 forms, claims for compensation, for periods through
September 30, 2006.2
Appellant’s attending Board-certified orthopedic surgeon, Dr. Stephen E. Fuhs, submitted
a January 5, 2005 report in which he advised that appellant’s right upper extremity had
“dramatically improved” and he could continuously lift 35 to 40 pounds and intermittently lift
70 pounds, with no other restrictions. On January 13, 2005 he reported that appellant could
return to full duties as of January 5, 2005. By report dated February 9, 2005, Dr. Fuhs noted that
he had discussed two jobs with appellant and completed two duty status reports that reflected the
two positions: (1) clerk mail processor position in which he advised that appellant could not case
mail and could not repetitively move his thumb and wrist and could not perform simple grasping
with a continuous 20-pound and intermittent 35-pound restriction; and (2) a clerk manual
position in which he advised that scanning and labeling papers and sacks was okay but appellant
could not case due to a permanent ligament tear and had a continuous 35- to 40-pound and an
intermittent 70-pound weight restriction. On a February 14, 2005 duty status report for a parcel
post distributor machine operator, the only restriction Dr. Fuhs provided was continuous lifting
restricted to 45 pounds and intermittent to 70 pounds.
On September 20, 2005 the Office asked that Dr. Fuhs clarify appellant’s restrictions and
he responded that an appointment was needed. A notification of personnel action, effective
October 15, 2005, advised that, at appellant’s request, he held the position of parcel post
distributor with duties of keying and sweeping on the small parcel and bundle sorter and
additional work on the news belt, manual primary letters and flats and other clerk duties as
assigned. By report dated October 19, 2005, Dr. Fuhs noted that appellant had a ganglion cyst
on his left wrist that was not part of his workers’ compensation claim. He advised that appellant
could tolerate his new job and provided a duty status report indicating that he could continuously
lift 35 to 40 pounds and intermittently lift 70 pounds and was to minimize repeated grasping and
releasing, was to rotate tasks, was not to case with the right upper extremity and that intermittent
keyboarding was okay. On December 12, 2005 Dr. Fuhs advised that appellant was not
tolerating a new position and advised that he could not case mail and should not perform
repetitive motion of the thumb or wrist or simple continuous grasping. Lifting was restricted to
20 pounds continuously and 35 pounds intermittently.
1

Docket No. 06-1823 (issued July 24, 2007). The Board notes that, by decision dated June 19, 2002, the Office
found that appellant’s actual earnings as a modified mail processor fairly and reasonably represented his
wage-earning capacity.
2

The record also contains CA-7 form claims for dates subsequent to September 30, 2006, not at issue in the
present case.

2

By letter dated February 8, 2006, the employing establishment advised appellant that,
given his current limitations and medical restrictions, no work was available. On February 27,
2006 Dr. Fuhs reported that appellant had symptoms of carpal tunnel syndrome with complaints
of nighttime numbness. Physical examination demonstrated positive Tinel’s and Phalen’s signs.
A telephone memorandum on June 1, 2006 noted that appellant began a new job in the fall of
2005 with the same job title but different duties. In a June 19, 2006 report, Dr. Fuhs advised that
appellant’s carpal tunnel syndrome had not progressed. An employing establishment duty status
form dated June 22, 2006 provided restrictions of no simple grasping or repetitive thumb or wrist
motion and no casing with a weight restriction of 30 pounds continuously and 75 pounds
intermittently. On June 28, 2006 appellant filed an Equal Employment Opportunity Commission
(EEOC) claim. A telephone memorandum dated July 28, 2006 advised that appellant bid for a
new position in October 2005, went through the training, but stopped work in November 2005,
stating that he was being asked to perform work beyond his restrictions. On August 7, 2006
appellant filed a grievance for failure to accommodate his work-related restrictions. By letter
dated August 23, 2006, the employing establishment advised that the position appellant held
before October 2005 was no longer available.
A conference was held on September 11, 2006 between the employing establishment
and the Office. The employing establishment advised that appellant was fully aware of the
physical requirements of the bid position and that the “casing” he was asked to perform was to
remove small bundles of mail weighing from 8 ounces to 10 pounds. By letter dated
September 13, 2006, appellant advised the Office that he was not aware that the bid position
required casing. On September 21, 2006 Cornelius Rosser, appellant’s supervisor, advised that
appellant reported to the bid position on October 15, 2005. He noted that the SPBS machines
had a high volume from September to November 2005, primarily due to Christmas catalogs and
that appellant performed these duties until November 2005 when there was a decline in mail
volume. Mr. Rosser stated that appellant was then instructed to work the news belt where
workers were positioned standing on one side to sort mail, stating that this required placing a roll
or bundles of news material, weighing from several ounces to eight pounds, into a container
matching the address of the material for dispatch. He stated that appellant did not notify him that
these duties were outside his restrictions but that he could not perform them due to back spasms,
noting that he was off work from November 12 to 14, 2005 and that upon his return to work he
was asked to submit medical documentation but did not do so.
By letter dated September 25, 2006, the employing establishment advised Dr. Fuhs that
the position for which appellant successfully bid in August 2005, parcel post distribution clerk,
required the operators to rotate every one to two hours from keying to sweeping, moving and
replacing the hampers for dispatch. When not working on the SPBS machine, appellant was
assigned to the news belt operation where he did not case mail but picked up a small bundle of
newspapers from a conveyor belt that weighed from several ounces up to eight pounds and
sorted them on sacks ready for dispatch. There was no twisting of the wrist on this operation.
The employing establishment stated that appellant was never sent to the “Manual Primary Letters
and Flats” operation, since that operation involved repetitive casing. Dr. Fuhs referred the
employing establishment to his February 27 through June 19, 2006 reports.

3

By decision dated October 20, 2006, the Office denied appellant’s claims for
compensation for periods from November 17, 2005 to September 30, 2006 on the grounds that
the evidence did not establish that the employing establishment withdrew the SPBS position and
that the medical evidence did not establish that he could not perform the position.
In a letter dated October 12, 2006, received by the Office on October 23, 2006,
John Griffin, distribution operations manager, controverted the claim. Mr. Griffin stated that
appellant had taken sick leave from November 12 through 14, 2005 due to back spasms, that
November 15 and 16, 2005 were nonscheduled days and that on November 17, 2005 he told his
supervisor that he could not work because he could not do his bid job and reported to work as
usual on November 18, 2005. Additional employing establishment correspondence included
letters dated May 24 and August 31, 2006 regarding appellant’s employment status and letters
dated October 17, November 2 and December 30, 2006 regarding his claim.
On November 14, 2006 appellant requested a hearing and submitted June 19, 2006
reports in which Dr. Fuhs advised that appellant could answer telephones, file and verify mail,
either sitting or standing and could distribute mail into employing establishment boxes but could
not case mail and could not perform repetitive movements of the thumb and wrist or simple
grasping. Dr. Fuhs provided permanent lifting restrictions of 30 pounds continuous and
75 pounds intermittent and advised that appellant could return to work, including overtime. In
an October 9, 2006 report, he advised that Tinel’s and Phalen’s tests were negative and in an
October 10, 2006 report reiterated appellant’s restrictions. In a May 23, 2007 report, Dr. Fuhs
provided physical examination findings and advised that Tinel’s and Phalen’s tests were negative
and there were no findings or wrist tenosynovitis. He advised that no further treatment was
planned and that he had no future plans for seeing appellant.
At the hearing, held on July 18, 2007, appellant testified that he was physically capable of
performing the duties of the bid position of SPBS clerk but that Mr. Rosser improperly removed
him from the position, based on his right wrist injury and that he had not returned to work since
stopping in November 2005. He argued that he should therefore receive wage-loss compensation
or be offered an appropriate position. Appellant noted that, although the SPBS position did not
require casing, he could case mail with his left hand and that he had filed a grievance regarding
his job withdrawal but that no final decision had been issued. He stated that, although he
occasionally had back spasms, these did not preclude him from performing the SPBS position.
Subsequent to the hearing, the employing establishment submitted correspondence
including a June 2, 2006 rebuttal in which Mr. Rosser advised that appellant bid for the SPBS
clerk position in October 2005 and provided a medical report stating that he was fully capable of
performing all the duties of the position but complained when he was assigned duties other than
working on the SPBS machine and that, when asked, he did not provide medical documentation.
Mr. Rosser stated that appellant’s trainers and coworkers complained about appellant’s lack of
knowledge regarding the position and that he constantly requested a change in schedule to get
weekends off, when the bid position was for Tuesdays and Wednesdays off. He stated that he
suggested that appellant try to bid for another position due to his medical restrictions and to
accommodate different days off. On June 7, 2007 Mr. Rosser described a November 27, 2005
meeting held with appellant to discuss his inability to perform his bid assignment as SPBS clerk.
He stated that, when appellant told him he was not able to perform this position and wanted to be

4

accommodated in another job, he was told that he would be assigned to duties in accordance with
employing establishment policies and, if no work was available, he would have to take annual or
sick leave. Mr. Rosser stated that he repeatedly requested that appellant renew his medical
restrictions.
The employing establishment also submitted a description of appellant’s bid position,
effective October 15, 2005, an August 24, 2006 conference memorandum, attended by appellant,
employing establishment management and a union steward, regarding his status, a December 8,
2006 letter informing him that he was being carried as absent without leave, a January 10, 2007
letter informing him to report for an investigative interview, including questions to be covered,
his February 2, 2007 deposition taken for an EEOC claim, a February 13, 2007 letter informing
him that a grievance was denied, that was appealed by him on February 26, 2007, a June 25,
2007 duty status form signed by appellant and an employing establishment nurse documenting
Dr. Fuhs’ restrictions, a July 8, 2007 letter advising him to report for an investigative interview
on July 13, 2007, an August 3, 2007 notice of separation for inability to perform the duties of the
SPBS position and August 16, 2007 letters in which the employing establishment again noted
that, when he bid for the SPBS position, he provided medical documentation showing that he
could perform the duties and that, although he provided a later report from Dr. Fuhs that
contradicted the October 19, 2005 report, the employing establishment could not get clarification
from Dr. Fuhs regarding the changes. The employing establishment noted that appellant testified
at the hearing that he did not perform any duties beyond his medical restrictions.
By decision dated October 1, 2007, an Office hearing representative affirmed the
October 20, 2006 decision, finding that the employing establishment did not withdraw the bid
position and that the medical evidence did not establish that appellant was not able to work
beginning November 17, 2005 as a result of the accepted injury-related conditions.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.”3 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.4 Where no such rationale is present, medical evidence
is of diminished probative value.5

3

20 C.F.R. § 10.5(x); R.S., 58 ECAB ____ (Docket No. 06-1346, issued February 16, 2007).

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

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Under the Federal Employees’ Compensation Act the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.6 Disability is thus not synonymous with physical impairment which may or
may not result in an incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act7 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.8 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.9
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.10 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.11
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.12 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.13 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.14

6

See Prince E. Wallace, 52 ECAB 357 (2001).

7

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

8

Donald E. Ewals, 51 ECAB 428 (2000).

9

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

10

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

12

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

13

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

14

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

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ANALYSIS
The Board finds that appellant has not established that his claimed disability for the
periods November 17 to December 30, 2005, January 1 to April 30 and July 1 to September 30,
2006 was caused by the accepted right wrist conditions. Appellant stopped work on
November 17, 2007 and filed a recurrence claim in August 2006, alleging that his work stoppage
was caused by withdrawal of a limited-duty assignment. At the time he stopped work in
November 2005, he was not working a limited-duty position, but rather as an SPBS clerk, a regular
position for which he had successfully bid. Therefore, to establish a recurrence of disability due to
an accepted employment-related injury, appellant had the burden of establishing by the weight of
the substantial, reliable and probative evidence that the disability for which he claimed
compensation was causally related to the accepted injuries.15 The issue of whether a claimant’s
disability is related to an accepted condition is a medical question which must be established by a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disability is causally related to employment factors and supports that conclusion with
sound medical reasoning.16
Appellant’s attending orthopedic surgeon, Dr. Fuhs, submitted a January 5, 2005 report in
which he advised that appellant’s right upper extremity had “dramatically improved” and he
could continuously lift 35 to 40 pounds and intermittently lift 70 pounds, with no other
restrictions and on January 13, 2005 advised that he could return to full duty. On a February 14,
2005 duty status report for a position as parcel post distributor machine operator, the only
restriction Dr. Fuhs provided was that continuous lifting be restricted to 45 pounds and
intermittent lifting to 70 pounds. By report dated October 19, 2005, he noted that appellant had a
ganglion cyst on his left wrist that was not part of his workers’ compensation claim and advised
that he could tolerate his new job. In a duty status report, Dr. Fuhs provided the same lifting
restrictions and advised that appellant was to minimize repeated grasping and releasing, was to
rotate tasks and was not to case with the right upper extremity. Intermittent keyboarding was
permitted. On December 12, 2005 Dr. Fuhs advised that appellant was not tolerating a new
position and advised that he could not case mail and should not perform repetitive motion of the
thumb or wrist or simple continuous grasping. Lifting was restricted to 20 pounds continuously
and 35 pounds intermittently.
The employing establishment advised that appellant was fully aware of the physical
requirements of the bid position and that the “casing” he was asked to perform was to remove
small bundles of mail that weighed from 8 ounces to 10 pounds, well within the lifting
restrictions provided by Dr. Fuhs. Mr. Rosser described additional duties appellant performed in
the bid position of SPBS clerk, including that the operators were to rotate every one to two hours
from keying to sweeping, moving and replacing the hampers for dispatch and when not working
on SPBS machine, would be assigned to the news belt operation where small bundles of
newspapers that weighed from several ounces up to eight pounds would be picked up from a
conveyor belt and sorted into sacks ready for dispatch. No twisting of the wrist was required.
While appellant initially stated that he stopped work because he was asked to work outside his
15

I.J., supra note 4.

16

Sandra D. Pruitt, 57 ECAB 126 (2005).

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physical restrictions and filed a grievance for failure to accommodate these restrictions, at the
hearing he testified that he was not asked to work outside his restrictions. Rather, he stated that
the employing establishment improperly withdrew the bid position.
In this case, the physical requirements of appellant’s bid job of SPBS clerk conformed
with the restrictions provided by Dr. Fuhs. None of these duties were outside the restrictions
provided by Dr. Fuhs in any of his medical reports. The medical evidence of record therefore
does not establish that appellant was totally disabled for the periods claimed. Appellant
therefore did not meet his burden of proof to establish that he was totally disabled due to his
accepted right wrist condition. As he did not submit medical evidence sufficient to establish his
claim, he did not meet his burden of proof to establish that he sustained a recurrence disability
and the Office properly denied his claim.17
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he was
totally disabled for the periods November 17 to December 30, 2005, January 1 to April 30 and
July 1 to September 30, 2006.

17

Tammy L. Medley, 55 ECAB 182 (2003). The Board notes that appellant submitted evidence subsequent to the
October 1, 2007 Office decision. The Board cannot consider this evidence, however, as its review of the case is
limited to the evidence that was before the Office at the time of its final decision. 20 C.F.R. § 501.2c.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2007 is affirmed.
Issued: June 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
U.S. POSTAL SERVICE, MURRAY HILL
STATION ANNEX, New York, NY, Employer
__________________________________________

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

Docket No. 12-796
Issued: September 26, 2012

Case Submitted on the Record

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

JURISDICTION
On February 28, 2012 appellant, through her attorney, filed a timely appeal from a
September 12, 2011 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying a request for reconsideration.1 As the most recent merit decision of OWCP
was issued on April 26, 2011, more than 180 days from the date of appeal, the Board does not
have jurisdiction over the merits of the claim.2 Pursuant to the Federal Employees’
Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the nonmerit decision.

1

Counsel did not appeal an October 20, 2011 nonmerit decision denying a request for a hearing. Therefore, the
Board does not have jurisdiction to review the October 20, 2011 decision on the present appeal.
2

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.
On appeal, counsel asserts that OWCP’s September 12, 2011 decision was “contrary to
fact and law.”
FACTUAL HISTORY
OWCP accepted that on February 19, 2005 appellant, then a 49-year-old distribution
clerk, sustained a lumbar strain, brachial, thoracic and lumbar neuritis while lifting mail. She
stopped work shortly after the injury and did not return.
Dr. Ranga C. Krishna, an attending Board-certified neurologist, followed appellant
beginning on May 4, 2005. He submitted reports through August 7, 2007 diagnosing cervical
and lumbar disc bulges with radiculopathy which he related to the February 19, 2005 injury.
Dr. Krishna found appellant totally disabled for work.4
In a February 14, 2006 report, Dr. Andrew M.G. Davy, an attending Board-certified
anesthesiologist specializing in pain management, found appellant totally disabled for work due
to neck and back pain attributable to multi-level disc pathologies throughout the spine.
On September 19, 2007 OWCP obtained a second opinion report from Dr. Michael J.
Carciente, a Board-certified neurologist, who opined that appellant had a normal neurologic
examination. A February 26, 2008 functional capacity evaluation demonstrated that appellant
could perform sedentary work.5 Based on recent medical evidence, on March 13, 2009, OWCP
requested that she submit a narrative report from her attending physician addressing the nature
and extent of the accepted conditions. Dr. Krishna submitted a June 1, 2009 report releasing
appellant to full-time sedentary duty. He restricted her to part-time sedentary work as of
March 29, 2010.
On April 29 and June 22, 2010 OWCP obtained second opinion reports from
Dr. Ronald M. Silverman, a Board-certified neurologist, who obtained updated imaging studies
showing age-related changes throughout the spine. Dr. Silverman opined that the accepted
injuries had resolved without residuals, and that appellant could resume work.
By notice dated August 25, 2010, OWCP advised appellant that it proposed to terminate
her compensation benefits on the grounds that the accepted spinal conditions had ceased without
4

Appellant submitted reports dated from March 2005 to March 2010 from Dr. Xerxes Oshidar, an attending
chiropractor, who diagnosed spinal subluxations but did not indicate that he diagnosed those subluxations based on
spinal x-rays. In a March 15, 2008 letter, OWCP advised her that Dr. Oshidar was not a physician under FECA for
the purposes of the case as he did not diagnose a spinal subluxation by x-ray. See 5 U.S.C. § 8101(2).
5

On May 12, 2008 OWCP obtained an opinion from Dr. Joel S. Cohen, a Board-certified neurologist, who found
no neurologic abnormalities on examination. Dr. Cohen’s role in the case is not clear from the record. OWCP
referred appellant for vocational rehabilitation in November 2008. A vocational rehabilitation effort did not result in
appellant’s employment.

2

residuals. In response, appellant submitted a September 3, 2010 report from Dr. Krishna, finding
that appellant continued to be substantially disabled due to herniated cervical and lumbar discs
attributable to the February 19, 2005 lifting incident.
By decision dated September 28, 2010, OWCP terminated appellant’s wage loss and
medical compensation benefits effective September 29, 2010 on the grounds that the accepted
conditions had ceased without residuals, based on Dr. Silverman’s opinion.
In an October 1, 2010 letter, appellant requested a telephonic hearing, held
February 10, 2011. At the hearing, she asserted that she remained largely disabled due to the
accepted February 19, 2005 injuries. Following the hearing, appellant submitted copies of
evidence previously of record, including Dr. Krishna’s September 3, 2010 report. She also
submitted November 22, 2010 spinal x-rays.
By decision dated April 26, 2011, OWCP’s hearing representative affirmed the
September 28, 2010 decision terminating appellant’s compensation. The hearing representative
found that appellant’s physicians did not provide sufficient medical rationale explaining how and
why the accepted February 19, 2005 injuries would continue to disable appellant for work on and
after September 29, 2010.
In a June 13, 2011 report, counsel requested reconsideration. He submitted a third copy
of Dr. Krishna’s September 3, 2010 report. Counsel also submitted a February 23, 2011 report
from Dr. Krishna reiterating previous findings, noting that appellant’s cervical and lumbar
conditions were unchanged, and repeating prior work restrictions. He also provided an April 7,
2011 functional capacity evaluation,
By decision dated September 12, 2011, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted in support thereof was duplicative of
evidence previously of record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,6
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.7 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.8

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

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In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.9 She need only submit
relevant, pertinent evidence not previously considered by OWCP.10 When reviewing OWCP’s
decision denying a merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(2) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.11
ANALYSIS
Following OWCP’s September 28, 2010 decision terminating appellant’s compensation
benefits effective September 29, 2010, counsel submitted an October 1, 2010 letter requesting a
hearing, held February 10, 2011. Following the hearing, appellant submitted a second copy of a
September 3, 2010 report from Dr. Krishna, an attending Board-certified neurologist. Originally
submitted on September 14, 2010 and considered by OWCP prior to the September 28, 2010
termination decision, Dr. Krishna’s September 3, 2010 report found her substantially disabled
due to cervical and lumbar disc herniations attributable to accepted February 19, 2005 spinal
injuries. On April 26, 2011 OWCP’s hearing representative affirmed the termination of
appellant’s compensation benefits as the new evidence submitted did not contain sufficient
rationale supporting continued residuals of the accepted conditions on and after
September 29, 2010.
Counsel requested reconsideration on June 13, 2011. He submitted a third copy of
Dr. Krishna’s September 3, 2010 report, a February 23, 2011 report from Dr. Krishna reiterating
previous findings, and an April 7, 2011 functional capacity evaluation. OWCP denied
reconsideration by decision dated September 12, 2011, finding that the evidence submitted was
cumulative and repetitious.
The critical issue at the time OWCP terminated appellant’s compensation was whether
the medical evidence established that appellant continued to have residuals of accepted
February 19, 2005 spinal injuries on and after September 29, 2010. Dr. Krishna’s September 3,
2010 report is not relevant because it was previously of record. His February 23, 2011 report is
repetitious of his reports previously of record. The Board has held that evidence which is
cumulative or repetitious of evidence previously submitted does not constitute a basis for
reopening a claim on its merits.12 The April 7, 2011 functional capacity evaluation is irrelevant
to the claim as it did not address the causation of any of the deficits observed.
Accordingly, the Board finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or

9

Helen E. Tschantz, 39 ECAB 1382 (1988).

10

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

11

Annette Louise, 54 ECAB 783 (2003).

12

A.R., Docket No. 11-1358 (issued January 3, 2012). See L.H., 59 ECAB 253 (2007).

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constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly issued its September 12, 2011 decision denying merit review.
On appeal, counsel asserts that OWCP’s September 12, 2011 decision is “contrary to fact
and law.” As stated above, OWCP properly denied appellant’s request for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2011 is affirmed.
Issued: September 26, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
P.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS HEALTHCARE
SYSTEM, Little Rock, AK, Employer
__________________________________________

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1252
Issued: March 22, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
JURISDICTION

On May 7, 2019 appellant, through counsel, filed a timely appeal from a November 15,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 15, 2018, the date of OWCP’s last decision, was
May 14, 2019. Because using May 14, 2019, the date the appeal was received by the Clerk of the Appellate Boards,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is May 7, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish stress-related
conditions in the performance of duty, as alleged.
FACTUAL HISTORY
On March 6, 2018 appellant, then a 39-year-old registered nurse, filed an occupational
disease claim (Form CA-2) alleging that she sustained physical and emotional conditions as a
result of performing her federal employment. She noted that she first became aware of her
conditions and their relationship to her federal employment on April 20, 2016. On the reverse side
of the claim form, S.P., appellant’s supervisor, noted that, appellant was detailed to the Central
Business Office in North Little Rock, Arkansas beginning on October 26, 2015 and tasked with
performing the duties of that department. On June 17, 2016 her detail location was changed to the
North Little Rock Nursing Service Office, where she was assigned tasks to complete such as audits
and electronic medical record surveillance. S.P. related that appellant was terminated by the
employing establishment on February 17, 2017.
In an accompanying undated statement, appellant indicated that on October 27, 2016 she
was detailed to the central business office’s fee department. On April 20, 2016 an access team of
18 employees, including herself, was created to assist with closing a backlog of accounts.
Appellant contended that on the first day at work she was assigned over 900 medical consults to
review and close. The consults contained about 27,000 to 28,000 pages of medical records.
Appellant further contended that a nurse manager in her unit gave appellant part of her workload
and also instructed other staff members to pass off some of their workload to her. She maintained
that she was assigned more work than the other team members combined. Appellant related that
her coworkers were only required to close up to 5 consults per day while she closed 936 consults
in 40 days. She also maintained that she was not given clear expectations or guidelines regarding
a timeline for the completion of her excessive workload. Appellant was simply told to document
everything she completed and provide a written status update to her supervisors at the end of each
day. None of her coworkers were required to report their daily work production. Appellant
claimed that, without clear work expectations, she experienced overwhelming stress, which took
a signiﬁcant toll on her physical and emotional health and well-being. She had anxiety about going
to work, difficulty sleeping, and worsening medical conditions that were aggravated by the stress.
Appellant suffered from frequent headaches and migraines, chest pain, mood swings and agitation,
physical and emotional fatigue, restlessness, and withdrawal from family and friends. The stress
significantly exacerbated her preexisting plaque psoriasis, irritable bowel syndrome, and
endometriosis. Appellant also developed guttate psoriasis, psoriatic arthritis, a potential
gastrointestinal bleed, major depressive disorder, anxiety disorder, panic attacks, and insomnia.

3

5 U.S.C. § 8101 et seq.

2

An employing establishment memorandum dated October 26, 2015 indicated that appellant
was indefinitely detailed to the North Little Rock Central Business Office effective October 27,
2015 to provide assistance in addressing a backlog of open consults/encounters.
An employing establishment incident report dated February 14, 2018 noted that on
April 20, 2016 appellant reported an excessive workload was placed upon her, which exacerbated
her previous medical issues.
In a March 15, 2018 e-mail, C.R., an employee, informed P.H. that appellant did not report
any work-related illness to the employee health unit during the period April 20, 2016 through
February 17, 2017.
In a March 23, 2018 letter, P.H., a human resources specialist, controverted appellant’s
claim.
In an April 5, 2018 development letter, OWCP advised appellant that the evidence
submitted was insufficient to establish her claim. It requested that she respond to the attached
questionnaire in order to substantiate the factual elements of her claim and provide medical
evidence to establish that she sustained a diagnosed condition caused or aggravated by her federal
employment. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant responded to OWCP’s development questionnaire. She
asserted that D.P., a supervisory case manager, assigned her own consults to her and instructed
other nurses in the fee department to also give some of their consults to her for review. Appellant
reiterated that she was required to review several 100 medical records without clear expectations
for completion of this excessive workload. She contended that she was informed by D.P. that she
was solely responsible for reviewing all the medical records related to the 900 consults. Appellant
was also informed by two case managers that they were instructed not to assist her with her
workload and to give some of their consults to her. She asserted that she was required to send a
daily e-mail to S.D. and R.E., group practice managers, regarding the number of consults she
reviewed for closure. Appellant noted that neither individual responded to her requests for
clarification about how many consults she was required to complete per day. She related that she
closed 936 consults during the period April 21 to June 20, 2016. A few nurse case managers in
the fee department told appellant that they were required to close zero to five consults per day and
they did not have to report their daily activity to the chief of staff’s office. Appellant filed an Equal
Employment Opportunity (EEO) complaint related to her claim, which had been investigated, but
no decision had been issued. She described her hobbies and noted her private industry employment
since being terminated from the employing establishment on February 17, 2017. Appellant further
noted that she had never been diagnosed with a psychiatric condition or been hospitalized for such
a condition. She listed the medications for her stress-related conditions, and noted that she had no
stressors outside her federal employment.
Appellant submitted several statements and e-mails dated March 26, 2016, and March 27
and 30, 2017 from M.J., a coworker; B.M., an investigative analyst; P.A. and S.T., registered
nurses; B.W., a coworker; and K.E., a program support assistant, who indicated that D.P. assigned
numerous boxes of medical records to appellant for review to close consults while no other
employees were instructed or required to do the same amount of work without assistance from

3

fellow staff and/or team members. P.A. also indicated that she was instructed by D.P. to pass off
some of her workload to appellant. K.E. related that he had worked in the fee unit for two years
and had never seen anybody assigned the type of workload assigned to appellant.
Appellant submitted an additional statement dated May 23, 2016 from P.A., and statements
of even date from V.C., S.F., and A.M., registered nurses, who indicated that they were required
to close five consults per day and did not have to directly report their daily activity to the chief of
staff’s office.
Appellant also submitted medical evidence.
OWCP, in a development letter dated May 7, 2018, requested that the employing
establishment respond to appellant’s allegations and provide additional information regarding the
duties and physical requirements of her position and her EEO complaint.
Appellant, through counsel, submitted additional statements that were signed by registered
nurses, L.N., S.T., and R.J. on May 23, 2016 and indicated that they were required to close only
five consults per day. The nurses also indicated that they were not required to report their daily
activity to the chief of staff’s office.
In a June 6, 2018 letter, P.H. responded to OWCP’s May 7, 2018 development letter. She
noted that appellant last worked at the employing establishment on February 17, 2017. P.H. also
noted that no final decisions had been issued regarding appellant’s grievance and/or EEO
complaint pertaining to her claim. She related that the employing establishment was not aware of
any investigative report related to her claim. P.H. submitted various statements, correspondence,
and a position description and memorandum for appellant’s detail position at North Little Rock
Nursing Service Office.
In a June 1, 2018 statement, D.P. explained that it was imperative to retrieve medical
records from the Arkansas Department of Health (ADH) as soon as possible as it was closing in
the summer of 2016. She noted that team access, which was under the office of chief of staff,
placed attention on the records from ADH. All expectations were directed by R.E. and S.D. D.P.
related that the medical records were simply placed at appellant’s desk because there was no other
place to put them. She stated that it was most important that these records were promptly received,
not completed within a certain time period. Regarding a clinical case manager’s responsibility to
complete five consults, D.P. related that full-time clinical case managers were challenged with
multiple tasks including, scheduling appointments, coordinating care in the community, speaking
with veterans on a daily basis and employing establishment providers and staff, and providers and
staff in the community. She noted that a list of 900 consults was given to appellant, but the list
indicated the number of consults that were ready for completion and not what had to be completed
in one day. D.P. explained that clinical case managers gave appellant some of their workload
because in addition to completing consults they had to perform many other duties while appellant’s
only responsibility was to complete consults. Regarding appellant’s contention that she reviewed
and took appropriate action on 936 consults in 40 days, she noted that this represented 23.4 consults
per day or 2.9 hour per hour. Overtime and compensation time was offered to all clinical case
managers to complete consults. D.P. indicated that case managers were required to review and
complete a minimum of seven consults per hour and that appellant’s accomplishment of 2.9

4

consults per hour fell below the current minimum requirement. She told appellant to do the best
she could to satisfy the task requirements. D.P. denied monitoring her work performance, and
setting deadlines, daily requirements or expectations. She related that appellant was given
autonomy in the organization of her daily tasks. D.P. further related that her accomplishments
were to be reported to R.E. and S.D. as they were required to report progress to the chief of staff’s
office on a daily basis. She maintained that appellant was allowed to come and go at will and at
no time was she restricted to her desk or the office. Breaks and lunches were taken as often and
for as long as she wished. At no time did D.P. monitor or track the time appellant was at her desk
or in the office. Her annual and sick leave requests were approved and accommodated without
restriction. Appellant was allowed to work overtime during the first few months of her arrival to
the department. She was also allowed to work on a holiday. D.P. noted that appellant wore
appropriate work attire and never presented with a look of grief or despair. She also did not exhibit
episodes of distress or being uncomfortable in her presence when they traveled on the same cruise
ship in August 2016. D.P. further noted that D.J. assisted appellant with the completion of
consults.
D.P., in a June 16, 2016 statement, explained the urgent need for team access to assist the
fee department to complete a backlog of nonskilled home health aide consults. She met with
appellant to discuss this situation and appellant agreed that she would redirect her focus and solely
concentrate on the consults. D.P. also informed her that, since the chief of staff office had directed
completion of the consults, it was necessary to e-mail the number of reviewed and completed
consults and record requests to S.D. and R.E. who were highly involved in nonskilled completion
project, at the end of each day. She noted that, a few days following the meeting, appellant told
her that there were too many records coming in for her to complete on her own. D.P. responded
that she should do her best which would be sufficient. She indicated that team access was aware
that one registered nurse was responsible for completing the consults and was performing as best
as possible. D.P. again maintained that she never required appellant to complete a certain number
of consults on a daily basis. She received an April 21, 2016 e-mail in which appellant reported
her work performance on that day. D.P. indicated that she never communicated with appellant
regarding her performance, time, and leave use, or behavior in a manner that qualified as
harassment or retaliation, or created a hostile work environment.
In a June 1, 2018 e-mail, K.E. responded to P.H.’s inquiry about appellant. He indicated
that he knew that D.P had some people bring a number of boxes ﬁlled with medical records to
appellant’s desk and that D.P. told appellant to review each record. K.E. indicated, however, that
he did not know why she had to review the records. He did not recall ever saying that there were
hundreds or thousands of medical records as he had no way of knowing how many records existed.
K.E. related that, all he knew, there were a lot of boxes filled with medical records and yes there
was undoubtedly hundreds, or maybe thousands of them.
R.E., in a June 5, 2018 e-mail to P.H. and J.A., deputy chief of staff, and copied to S.D.,
indicated that appellant was not required or asked to share her workload, but that sometimes he
and S.D. received an e-mail from her wherein she shared her daily progress.
R.E.’s June 5, 2018 e-mail included a statement from J.A. who indicated that R.E. and S.D.
monitored the number of open consults for the entire facility, but had never set any workload
requirements.

5

E-mails dated November 14, 2015 and April 22 and 25 and June 13, 2016 showed that
appellant reported her work hours, reviewed consults, and requested a current list of consults, and
that D.P. instructed her to report the number of consults she reviewed and completed, and records
she requested at the end of the day to S.D. and R.E.
In a July 12, 2018 statement, appellant responded to the employing establishment’s June 6,
2018 letter and submitted e-mails she sent to R.E. and S.D. regarding heavy workload. She
contended that, in the May 3 and 11, 2016 e-mails sent to R.E. and S.D., she voiced her concerns
about being assigned an excessive workload, missing information needed to complete her assigned
tasks, and being uncertain about the timeframe in which to complete these tasks. Appellant
claimed that 18 access team members generated work that was completed only by her. She
contended that, in a May 11, 2016 e-mail, she again expressed her concern regarding the
identification of a timeframe for the completion of her review of records and the thousands of
pages of medical records she had to review to R.E. and S.D. Appellant was aware of the physical
presence of 5½ boxes containing 27,000 to 28,000 medical records that were assigned to her by
P.D. for review, and duties and responsibilities of fee case management nurses and support staff.
She noted that his statements were made in response to her March 25, 2017 e-mail to him.
Contrary to D.P.’s statement that the records were placed on her desk because there was no other
place to put them, appellant contended that there were several large tables and available space on
the floor and in file cabinets within the work unit. She further contended that besides completing
consults, she was tasked with answering telephone calls, drafting facsimile cover sheets for
requests for medical records, speaking with Central Arkansas Veterans Healthcare Providers/staff,
and reviewing information. Appellant also contended that D.P. confirmed that she assigned 900
consults to appellant and instructed all other staff to add their work to her overwhelming number
of consults on her desk. She claimed that D.P. contradicted her statement that accomplishments
did not have to be reported to R.E. and S.D. Appellant noted that she related that accomplishments
had to be reported to R.E. and S.D. because they were required to report progress to the chief of
staff’s office on a daily basis. Regarding D.P.’s comment about appellant’s request to work
overtime, appellant maintained that she did not want to work overtime, but requested it to complete
her assigned large workload.
OWCP, by decision dated November 15, 2018, denied appellant’s claim, finding that she
had not established a compensable factor of employment. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; (2) medical evidence establishing that he or she has an emotional
or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that the
emotional condition is causally related to the identified compensable employment factors.4

4

C.V., Docket No. 18-0580 (issued September 17, 2018).

6

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.6
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.7
Allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim.8 Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.9 Personal perceptions alone are
insufficient to establish an employment-related emotional condition, and disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force, or frustration from
not being permitted to work in a particular environment, or to hold a particular position.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.11 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.12
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant has attributed her emotional condition in part to Cutler13 factors. She has alleged
that she was overworked during a detail assignment. Appellant contended that on the first day at
5

28 ECAB 125 (1976).

6

See G.M., Docket No. 17-1469 (issued April 2, 2018); Robert W. Johns, 51 ECAB 137 (1999).

7

Supra note 5.

8

A.C., Docket No. 18-0507 (issued November 26, 2018).

9

G.R., Docket No. 18-0893 (issued November 21, 2018).

10

See A.C., supra note 8.

11

C.V., supra note 4.

12

Id.

13

Supra note 5.

7

work she was assigned over 900 medical consults to review and close. She contended that the
consults contained “about 27,000 to 28,000 pages of medical records.” Appellant further
contended that a nurse manager in her unit gave her part of her workload and also instructed other
staff members to pass off some of their workload to her. She maintained that she was assigned
more work than the other team members combined. Appellant related that her coworkers were
only required to close up to 5 consults per day while she closed 936 consults in 40 days. She also
maintained that she was not given clear expectations or guidelines regarding a timeline for the
completion of her excessive workload. Appellant was simply told to document everything she
completed and provide a written status update to her supervisors at the end of each day. None of
her coworkers were required to report their daily work production. The Board has held that
overwork is a compensable factor of employment if appellant submits sufficient evidence to
substantiate this allegation.14 Witness statements from M.J., B.M., P.A., S.T., B.W., and K.E.
indicated that appellant was given a numerous amount of records to review and that her coworkers
were not assigned that number of records to review or type of workload.
A statement from D.P., a supervisory case manager, indicates that appellant’s detail
assignment required her to complete an unidentified number of consults that, were contained in
many boxes, she discussed with appellant the urgent need to obtain medical records from ADH to
perform the consults, clinical case managers gave appellant a portion of their workload because
they had other work duties to perform while she was only assigned to complete consults, and she
told appellant to do the best that she could do to accomplish her work duties. Additionally, J.A.,
deputy chief of staff, indicated that R.E. and S.D., group practice managers, never set any workload
requirements, rather they monitored the number of open consults for the entire facility.
Although it is a claimant’s burden of proof to establish her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment.15 It shares responsibility to see that justice is done.16 In a case where it “proceeds
to develop the evidence and to procure evidence, it must do so in a fair and impartial manner.”17
The case shall therefore be remanded for further development.18 On remand OWCP shall
request that the employing establishment provide additional evidence regarding the specific nature
and extent of appellant’s detail assignment to the Central Business Office in North Little Rock,
Arkansas, including the terms of the detail assignment, a detailed description of her job duties, and
information regarding the employing establishment’s expectations of her performance while on

14

W.F., Docket No. 18-1526 (issued November 26, 2019); J.E., Docket No. 17-1799 (issued March 7, 2018);
Bobbie D. Daly, 53 ECAB 691 (2002).
15
T.S., Docket No. 19-0164 (issued November 13, 2019); T.B., Docket No. 19-0323 (issued August 23, 2019);
Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).
16

M.T., Docket No. 19-0373 (issued August 22, 2019).

17

S.L., Docket No. 17-1780 (issued March 14, 2018).

18

See D.I., Docket No. 19-0534 (issued November 7, 2019); N.S., Docket No. 16-0914 (issued April 10, 2018).

8

the detail assignment. After this and other such further development, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9