United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
ELECTRONICS SYSTEM COMMUNICATION,
Charleston, SC, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 08-2377 &
09-196
Issued: September 25, 2009

Case Submitted on the Record

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

JURISDICTION
On September 2, 2008 appellant, through counsel, filed a timely appeal from an
August 14, 2008 decision of the Office of Workers’ Compensation Programs’ hearing
representative affirming the April 24, 2008 denial of her request for expansion of her claim. On
October 27, 2008 appellant’s counsel filed a timely appeal from an October 15, 2008 decision,
denying authorization for a medical test. Pursuant to 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 the Office properly denied appellant’s request to expand her
claim to include the conditions of vocal chord shortness of breath, vocal cord dysfunction,
allergic rhinitis/hay fever, reactive airway dysfunction syndrome, persistent cough,
gastroesophageal reflux disease and sleep apnea with hypersomnia; and (2) whether the Office
properly denied authorization for appellant’s request for a polysomnography test.

FACTUAL HISTORY
On December 1, 2005 appellant, then a 47-year-old computer technician, filed a
traumatic injury claim alleging that on that date she had an allergic reaction to smelling paint
fumes.1 The Office accepted the claim for dysphagia and chronic pharyngitis, which was
subsequently expanded to include chronic obstructive asthma.2 Appellant stopped work on
December 1, 2005 and was placed on the periodic rolls for temporary total disability.
Appellant’s physician requested that her claim be expanded to include additional
conditions.
In development of the case, the Office referred appellant to Dr. Cary E. Fechter, a
physician Board-certified in internal medicine and pulmonary disease, to resolve a conflict in the
medical opinion evidence regarding her work capacity between Dr. Pastis, her treating Boardcertified internist, who found “multiple exasperations to paint exposure” at work and
Dr. Robert L. Thomas, a second opinion physician Board-certified in internal medicine,
pulmonary diseases and critical care medicine who diagnosed occupational asthma, dysphagia,
chronic pharyngitis, hypertension and type two diabetes, and noted that appellant had been
exposed three times to paint fumes at work, which resulted in asthma attacks. Dr. Thomas
opined that she was capable of working an eight-hour day provided that she was not exposed to
dust, fumes and strong smoke or odors.
On September 18, 2007 Dr. Fechter reported that appellant had been exposed to paint
fumes three times at work with the most recent exposure being December 1, 2005. He diagnosed
occupationally-induced asthma due to her exposure to strong paint fumes on July 15, 2004 and
February 28 and December 1, 2005. Dr. Fechter noted that appellant’s “condition seems to
worsen with every onset of an attack.” Under review of systems, he noted “[o]bvious
anxiety/depression, particularly about being in house and not being able to get out.”
Dr. Fletcher reported under aspects of care:
“Almost any time [appellant] leaves the house she is exposed to either wind, dust,
chemicals or gas fumes from cars and she gets sick. We are not certain if all of
that is acute bronchospasm or not. Consequently, we are, as physicians, referring
her to a psychiatric [physician] for evaluation although it appears it is truly
medically induced.”
In concluding, he opined that appellant was totally disabled from all work including sedentary
employment.

1

The Office assigned claim file number xxxxxx122.

2

On December 31, 2007 the Office combined claim file numbers xxxxxx657 and xxxxxx168 with claim file
number xxxxxx122. Under claim file number xxxxxx657 appellant alleged that on July 14, 2004 she had an allergic
reaction to smelling paint fumes. She, under claim file number xxxxxx168, alleged that on February 28, 2005 she
had an allergic reaction to smelling paint fumes. In a November 21, 2007 memorandum, the Office noted that claim
file numbers xxxxxx657 and xxxxxx168 had been administratively closed with no accepted condition.

2

On November 27, 2007 Dr. Pastis noted that he had seen appellant since December 22,
2005 and that she had been exposed “to strong industrial paint while on the job” three times,
which were July 15, 2004 and February 28 and December 1, 2005. He opined that the accepted
employment conditions needed to be expanded to include shortness of breath, allergic
rhinitis/hay fever, vocal cord dysfunction, reactive airways dysfunction syndrome, persistent
cough, asthma, gastroesophageal reflux disease and sleep apnea with hypersomnia. Dr. Pastis
concluded that these conditions were employment related as they had not existed prior to her
work paint exposure. He related that appellant stated that she was currently “unable to leave her
house without risking flare-up of her underlying lung disease.”
In a letter dated December 5, 2007, the Office informed Dr. Pastis that he failed to
provide any medical rationale supporting his request to expand appellant’s accepted conditions.
On December 18, 2007 Dr. Fechter stated that he agreed with Dr. Pastis’ findings. He
noted that he had been treating her since September 2007 and opined that her paint exposure at
work caused her occupationally-induced asthma as well as her frequent bouts of shortness of
breath and asthma flare ups.
In a December 19, 2007 report, Dr. Pastis responded to the Office’s request for medical
rationale. He noted that “[r]eactive airways dysfunction syndrome occurs as a result of inhaled
chemical damage to the tracheobronchial tree” resulting in “an obstructive-type lung disease,
which behaves similarly to asthma” and shortness of breath. Next, Dr. Pastis stated that he
believed “the timing of [appellant’s] paint exposures and her subsequent symptoms provided a
reasonable rationale to explain why the paint exposure led to reactive airways dysfunction
syndrome.” He stated the chemical exposure to paint fumes also caused vocal cord irritation,
swelling of her uvula and hoarseness which resulted in vocal cord dysfunction. Dr. Pastis noted
that individuals with asthma also have sinus problems, which led to appellant’s worsening
diagnosis of allergic rhinitis/hay fever symptoms. As to the gastroesophageal reflux disease, he
stated that he agreed that it was probably a preexisting condition. Dr. Pastis indicated that
appellant’s sleep apnea was not related to reactive airways dysfunction syndrome or chemical
exposures, but related that “swelling of the uvula and the retropharyngeal tissues can lead to
obstructive sleep apnea.” Thus, he concluded that the employment conditions caused
inflammation of appellant’s uvula and retropharyngeal spaces which “may have exacerbated
obstructive sleep apnea and provides a rationale for evaluation and treatment of obstructive sleep
apnea.” In addition, Dr. Pastis related that she “had significant symptoms of daytime sleepiness,
as well as nocturnal oxygen desaturations.” Lastly, he opined that appellant sustained permanent
damage as shown by her reactive airways dysfunction syndrome and that removing her from her
environment did not correct the problem.
On February 26, 2008 Dr. Robert A. Marwick, a second opinion Board-certified
otolaryngologist, noted that appellant was exposed four years ago at work to paint fumes. He
reported that her voice was both normal and hoarse during the examination and that he found no
positive physical findings on examination. In concluding, Dr. Marwick stated that he would like
to see appellant on a bad day.
Dr. Marwick, in a March 27, 2008 report, stated that he had reviewed the statement of
accepted facts and physical examination. He concluded that there was no objective evidence

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supporting any continued residuals or disability from her accepted employment injury as
described in the statement of accepted facts. In concluding, Dr. Marwick noted that “[o]ther than
a report of one time exposure to paint fumes four years ago” he concluded that appellant could
return to her date-of-injury position providing there was no further exposure to paint fumes.
In a report dated April 21, 2008, Dr. Pastis noted appellant’s illness history and reported
that a spirometry test revealed that she is stable and has moderate restriction. He noted that she
had a “[h]istory of reactive airways dysfunction syndrome,” which he believed was not “the
source of her shortness of breath” and attributed her restrictive dysfunction condition to her
weight. Dr. Pastis diagnosed obstructive sleep apnea and recommended sending appellant for “a
follow[-]up sleep study to see the effect of UPPP [uvulopalatopharyngoplasty] surgery and
whether she is still requiring CPAP [continuous positive airway pressure].”
On April 24, 2008 the Office received an April 21, 2008 sleep study request form for a
CPAP study. The form noted that Dr. Pastis, the requesting physician, believed that appellant
“may be able to come off of CPAP” as she recently had UPPP surgery.
By decision dated April 24, 2008, the Office denied appellant’s request to expand her
claim to include the additional conditions.
In a report dated April 30, 2008, Dr. Shaun Scott, a treating Board-certified
otolaryngologist, noted that he has treated appellant for allergic rhinitis and sinusitis since
October 2001. While this condition was not caused by appellant’s exposure to paint, Dr. Scott
opined that her paint exposure likely aggravated these preexisting conditions.
On May 14, 2008 appellant’s counsel requested a review of the written record and
submitted a May 1, 2008 report by Dr. Pastis. Counsel also requested a referral to a second
opinion psychiatrist to evaluate her consequential emotional condition. In the May 1, 2008
report, Dr. Pastis noted that the diagnosis of reactive airways dysfunction syndrome “is almost
identical to asthma but is induced by chemical exposure as has occurred for [appellant].” He
noted that prior to her paint exposure appellant did not have any difficulty breathing, coughing
wheezing and shortness of breath despite the presence of some sinus complaints and her
smoking. Dr. Pastis noted that the positive methacholine challenge test aided in the confirmation
of the diagnosis of reactive airways dysfunction syndrome. He noted appellant had chemical
exposure-induced vocal cord irritation with subsequent uvula swelling and hoarseness.
Dr. Pastis opined that she “likely developed asthma in response to her irritant exposures, which
parallels her reactive airways dysfunction syndrome.” As to appellant’s gastroesophageal reflux
disease, Dr. Pastis opined that it “may have been a preexisting condition” and “likely made her
cough and shortness of breath worse.” Dr. Pastis stated that he could not directly correlate her
paint/chemical exposure to this condition. In concluding, he attributed appellant’s persistent
cough as being likely due to her reactive airways dysfunction syndrome and asthma.
In a June 4, 2008 report, Dr. Pastis stated that the Office misquoted his April 21, 2008
report. He noted that appellant’s spirometry tests have consistently shown she has a restrictive
impairment. Dr. Pastis related that the conditions of reactive airways dysfunction syndrome and
asthma “are dynamic conditions and one would expect periods of quiescence between
exposures.”

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On July 7, 2008 the Office received the results of a May 7, 2008 polysomnography study
by Dr. Hugh D. Durrence, a treating Board-certified family practitioner, which found no sleep
disorder breathing condition.
By decision dated August 14, 2008, the Office hearing representative affirmed the
April 24, 2008 decision denying appellant’s request to expand her claim.
In a letter dated September 11, 2008, the Office requested that appellant submit medical
evidence from the provider showing the diagnosis for the requested procedure and how it is
related to appellant’s accepted conditions. Appellant was afforded 30 days to submit the
requested evidence.
In response appellant submitted her October 7, 2008 statement and an October 2, 2008
report from Dr. Pastis, who diagnosed reactive airways dysfunction syndrome due to work
exposure. He related that she had hoarseness, vocal cord dysfunction, oropharyngeal swelling
trouble and “obstructive sleep apnea, which was complicated by her elongated uvula and airway
edema.” Dr. Pastis reported appellant’s symptoms improved following her UPPP and turbinate
reduction surgery. In concluding, he stated that she “needed her postoperative polysomnogam to
see if she still requires CPAP” and that “[t]he study show she no longer needs it as her surgery
was a success.”
On October 15, 2008 the Office denied appellant’s request to authorize a
polysomnography test. It explained that Dr. Pastis did not provide medical rationale to support a
causal relationship between the accepted conditions of dysphagia, chronic pharyngitis and
chronic obstructive asthma and the requested test. It further explained that the “evidence
support[s] that the procedure requested was due to the UPPP surgery, due to sleep apnea, to
evaluate whether you are in need of a CPAP.”
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that, a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.3 To establish a causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a casual relationship.4 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.5
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the diagnosed condition
and the specific employment factors identified by the claimant.6 Neither the mere fact that a
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

5

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Mary J. Summers, 55 ECAB 730 (2004).

6

Phillip L. Barnes 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

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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.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant’s employment caused the conditions of dysphagia and
chronic pharyngitis, which was subsequently expanded to include chronic obstructive asthma. It
denied her request to expand her claim to include the conditions of shortness of breath; vocal
cord dysfunction; allergic rhinitis/hay fever; reactive airway dysfunction syndrome; persistent
cough; gastroesophageal reflux disease; and sleep apnea with hypersomnia. The issue is whether
appellant has met her burden of proof to establish that those conditions were causally related to
her accepted injury. The Board finds that she has not met her burden of proof.
On November 27, 2007 Dr. Pastis requested that the Office expand appellant’s accepted
employment conditions to include shortness of breath, allergic rhinitis/hay fever, vocal cord
dysfunction, reactive airways dysfunction syndrome, persistent cough, asthma, gastroesophageal
reflux disease and sleep apnea with hypersomnia. He concluded that these conditions were
employment related as they had not existed prior to her work paint exposure. This report is
insufficient to meet appellant’s burden of proof. 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.
In a December 19, 2007 report, Dr. Pastis opined that appellant’s reactive airways
dysfunction syndrome was employment related as the condition occurs as a result of “inhaled
chemical damage to the tracheobronchial tree.” He concluded that her paint exposure with
subsequent symptoms provided sufficient rationale to conclude that this condition was
employment related. Dr. Pastis also concluded that the chemical exposure to paint fumes also
caused vocal cord irritation, swelling of appellant’s uvula and hoarseness, which resulted in
vocal cord dysfunction. This report noted that she accepted employment paint exposure and
provided an opinion on the causal relationship between that exposure and her diagnosed
conditions of shortness of breath, allergic rhinitis/hay fever, vocal cord dysfunction, reactive
airways dysfunction syndrome, persistent cough, asthma, gastroesophageal reflux disease and
sleep apnea with hypersomnia. Dr. Pastis did not; however, offer any medical reasoning in
support of his stated conclusion. A mere conclusion without the necessary medical rationale
explaining how and why he believes that appellant’s accepted chemical exposure could result in
a diagnosed condition is not sufficient to meet her burden of proof.8 The medical evidence must
also include rationale explaining how Dr. Pastis reached the conclusion he or she is supporting.
He did not provide such an explanation. Due to the foregoing deficiencies this report is
insufficient to establish appellant’s claim.

7

V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007); Ernest St. Pierre, 51 ECAB 623 (2000).

8

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Albert C. Brown, 52 ECAB 152 (2000)
(a medical conclusion unsupported by medical rationale is of diminished probative value).

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On appeal, appellant’s attorney contends that Dr. Marwick’s opinion should be excluded
because it is based on an inaccurate history. In addition, appellant argues that the Office should
not have referred her to Dr. Marwick for a second opinion evaluation because this amounted to
physician shopping. She contends that there is nothing in the record showing that appellant had
any preexisting medical condition other than what Dr. Marwick noted in his report. As appellant
correctly pointed out, Dr. Marwick’s reports are based on an inaccurate history as the physician
incorrectly stated that she was exposed once to pain fumes approximately fours years ago. It is
well established that medical reports must be based on a complete and accurate factual and
medical background and medical opinions based on an incomplete or inaccurate history are of
little probative value.9 Moreover, the Office only excludes reports from the record under specific
circumstances relative to impartial medical specialists, a situation which is not presented on this
appeal.10 Appellant also contends that the Office erred in relying upon Dr. Marwick’s report to
deny the expansion of appellant’s claim to include the additional conditions of vocal chord
shortness of breath; vocal cord dysfunction; allergic rhinitis/hay fever; reactive airway
dysfunction syndrome; persistent cough; gastroesophageal reflux disease; and sleep apnea with
hypersomnia. The Office did, however, not rely upon Dr. Marwick’s reports when it denied the
expansion of appellant’s claim. The basis of the Office’s denial was that Dr. Pastis failed to
provide sufficient rationale explaining how the diagnosed conditions were causally related to her
employment injury.
Next, appellant contends that the Office erred in failing to request that Dr. Fletcher, the
impartial medical examiner, provide a supplemental report regarding her depression and that the
Office erred in failing to refer appellant for a second opinion evaluation to determine the extent
and cause of her consequential emotional condition. We disagree. The Office referred appellant
to Dr. Fletcher to resolve the conflict in the medical opinion evidence on the issue of whether she
was totally disabled due to her accepted conditions. Dr. Fletcher resolved this conflict by finding
that she was totally disabled due to her accepted conditions. As to her emotional condition,
Dr. Fletcher merely noted the existence of this condition without providing any opinion as to
whether her depression and anxiety were consequential injury of her accepted conditions. Thus,
the Office properly did not request Dr. Fletcher to provide a supplemental report as he had
resolved the conflict in the medical opinion evidence.
As to appellant’s assertion that the Office erred in failing to refer her for a second opinion
evaluation, the Board notes that it is her burden to submit medical evidence establishing the
`existence of the claimed condition and that the condition is causally related to the identified
employment factors.11 While the Office may require an employee to undergo a physical
examination, as it deems necessary, the determination of the need for the examination is a matter
within the province and discretion of the Office.12 None of the medical evidence in the record
provides an opinion that appellant’s depression and anxiety are consequential injuries. Thus, the
9

M.W., 57 ECAB 710 (2006); Douglas M. McQuaid, 52 ECAB 382 (2001).

10

See Terrance R. Stath, 45 ECAB 412 (1994); see also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Examinations, Chapter 3.500.6 (September 1995).
11

Michael R. Shaffer, 55 ECAB 386 (2004).

12

See 5 U.S.C. § 8123; Dana D. Hudson, 57 ECAB 298 (2006).

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Office did not err in not referring appellant for a second opinion evaluation on the issue of
whether she sustained a consequential emotional condition.
The Board finds that as the medical evidence included in the record does not contain the
necessary medical reasoning to establish a causal relationship between appellant’s various
diagnosed conditions and her employment, she has not met her burden of proof and the Office
properly declined to expand her claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of the Federal Employees’ Compensation Act13 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.14
In interpreting section 8103 of the Act, the Board has recognized that the Office has
broad discretion in approving services provided under the Act.15 The Office has the general
objective of ensuring that an employee recovers from her injury to the fullest extent possible in
the shortest amount of time. It has broad administrative discretion in choosing means to achieve
this goal. The only limitation on the Office’s authority is that of reasonableness.16 Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from
established facts.17 It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.18
In order to be entitled to reimbursement for medical expenses, a claimant must establish
that the expenditures were incurred for treatment of the effects of an employment-related injury
by submitting rationalized medical evidence that supports such a connection and demonstrates
that the treatment is necessary and reasonable.19 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the

13

5 U.S.C. §§ 8101-8193.

14

5 U.S.C. § 8103; see also L.D., 59 ECAB ___ (Docket No. 08-966, issued July 17, 2008).

15

See P.C., 59 ECAB ___ (Docket No. 07-1691, issued June 20, 2008).

16

A.O., 60 ECAB ___ (Docket No. 08-580, issued January 28, 2009); L.W., 59 ECAB ___ (Docket No. 07-1346,
issued April 23, 2008); Dr. Mira R. Adams, 48 ECAB 504 (1997).
17

L.W., supra note 16.

18

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007).

19

R.L., 60 ECAB ___ (Docket No. 08-855, issued October 6, 2008).

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expenditure is incurred for treatment of the effects of an employment-related injury or
condition.20 Proof of causal relation must include rationalized medical evidence.21
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained employment-related dysphagia, chronic
pharyngitis and chronic obstructive asthma. Appellant has the burden of proof to establish that
the Office abused its discretion by denying authorization for the polysomnogram she requested.
As noted above, the Office is obligated to authorize and pay for treatments it reasonably
finds likely to cure, give relief or aid in lessening the period of disability associated with an
accepted employment-related condition.22 It is not obligated to compensate appellant for
treatment of nonaccepted conditions.23 Before she is entitled to authorization and compensation
for her requested procedure, she must prove that the condition the test is intended to treat is
causally related to her employment injury and that it is medically warranted.24 Dr. Pastis
diagnosed sleep apnea in his various reports and recommended the polysomnogram to determine
whether she continued to require CPAP. Sleep apnea has not been accepted as employment
related by the Office, however, and thus it is appellant’s burden of proof to establish an
employment relationship.25 Dr. Pastis did not explain how the requested polysomnogram was
necessitated by the accepted conditions. The Board has previously held that a medical report
which does not include a physician’s rationalized opinion on causal relationship is not probative
on that issue.26
In addition, Dr. Pastis’ report does not provide an explanation as to how the
polysomnogram would be likely to cure appellant’s employment-related dysphagia, chronic
pharyngitis and chronic obstructive asthma, give relief from the condition, reduce the degree or
the period of disability or aid in lessening the amount of the monthly compensation.27 He noted
that the test was to determine whether appellant continued to require CPAP following her
surgery and that the test revealed the surgery was successful as CPAP was no longer required.

20

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

21

Id.; Bertha L. Arnold, 38 ECAB 282 (1986).

22

See supra note 14.

23

Cathy B. Millin, 51 ECAB 331, 333 (2000).

24

Id.

25

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted or approved by the Office as being due
to an employment injury, the claimant bears the burden of proof to establish that the condition is causally related to
the employment injury).
26

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
27

See supra note 14.

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As appellant has not established that the requested procedure was for a condition causally
related to the employment injury and that the polysomnogram was medically warranted, the
Office properly denied authorization for the requested procedure.
CONCLUSION
The Board finds that the Office properly refused to expand appellant’s claim to include
the conditions of shortness of breath, vocal cord dysfunction, allergic rhinitis/hay fever, reactive
airway dysfunction syndrome, persistent cough, gastroesophageal reflux disease and sleep apnea
with hypersomnia. The Board further finds that the Office properly denied authorization for her
request for a polysomnography test.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 27, 2008 and that of the hearing representative dated
August 14, 2008 are affirmed.
Issued: September 25, 2009
Washington, DC

Alec J. Koromilas, 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
__________________________________________
R.T, Appellant
and
TENNESSEE VALLEY AUTHORITY, JOHN
SEVIER STEAM PLANT, Rogersville, TN,
Employer
__________________________________________

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

Docket No. 09-534
Issued: November 6, 2009

Case Submitted on the Record

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

JURISDICTION
On December 18, 2008 appellant filed a timely appeal from the July 28 and
September 22, 2008 decisions of the Office of Workers’ Compensation Programs that modified
his wage-earning capacity to zero and terminated his medical benefits and from a November 19,
2008 decision denying merit review. Pursuant to 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 the Office met its burden of proof to modify appellant’s
wage-earning capacity determination; (2) whether the Office met its burden of proof to terminate
appellant’s medical benefits; and (3) whether the Office properly refused to reopen appellant’s
claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On October 10, 1972 appellant, then a 31-year-old assistant unit operator, injured his
lower back and legs in the performance of his federal duties. He stopped work on
October 12, 1972.1 The claim was accepted for lumbosacral strain. Appellant was placed on the
periodic rolls. In December 1972, a vocational rehabilitation plan was approved for college
studies and he enrolled at East Tennessee State University, ultimately receiving bachelor’s and
master’s degrees in special education. By decision dated March 22, 1978, the Office reduced
appellant’s wage-loss compensation based on his capacity to earn wages as a special education
teacher. On August 17, 1978 it amended the decision to reflect that he was entitled to
compensation until August 14, 1978, when he began teaching in the Bristol, Virginia city
schools.2
In April 2001, the Office referred appellant to Dr. Stephen R. Shaffer, a Board-certified
orthopedic surgeon, for a second opinion evaluation. By report dated April 30, 2001, Dr. Shaffer
noted findings on examination diagnosed status post L4-5 discectomy and residual signs of L5
radiculopathy with lumbosacral strain aggravating the condition. He provided permanent
restrictions to appellant’s physical activity and advised that he could continue teaching.3
Appellant retired from teaching sometime in 2004 or 2005. On April 4, 2006 the Office
requested that he submit a narrative medical report. In an April 20, 2006 response, appellant
advised that Dr. Shaffer had provided permanent restrictions in 2001 and he had not been treated
since that time, other than with the Department of Veterans Affairs. In a May 10, 2006 report,
Dane Harden, a physician’s assistant, diagnosed depression, anxiety disorder, tinnitus, hearing
loss, hypertension and prostatic cancer. In March 2007, appellant resubmitted the same report.
In April 2008, the Office referred appellant to Dr. Michael J. Goebel, Board-certified in
orthopedic surgery, for a second opinion evaluation.4 By report dated June 3, 2008, Dr. Goebel
noted appellant’s complaint of low back pain and occasional lower extremity pains. He
reviewed the statement of accepted facts and medical record and noted that appellant’s past
medical history was significant for two back surgeries in 1963 and 1971 that preceded the
October 10, 1972 employment injury, high blood pressure and prostate cancer. On physical
examination appellant had a normal stance and gait and could forward flex 90 degrees and stand
1

The record indicates that appellant had disc surgery in the 1960s while he was in the Navy and again on
October 5, 1971. He did not file a claim for the October 1971 condition, although he later stated that he began to
feel back and leg pain in September 1971 while at work.
2

On June 26, 1990 and January 23, 1991, the Office proposed to reduce appellant’s compensation. The proposed
decisions were not finalized.
3

Appellant could not reach above the shoulder, twist, squat, kneel or climb, could sit, walk and stand one hour at
a time with five-minute breaks each hour and a 35-pound restriction on pushing, pulling and lifting. The medical
record from the time appellant began his teaching career until seen by Dr. Shaffer is sparse and only includes reports
dated April 27, 1982 and October 11, 1985 from Dr. Harry W. Bachman, a Board-certified orthopedic surgeon, a
November 18, 1986 report from Dr. Robert C. Henderson, a Board-certified orthopedist and reports dated March 26
and 27, 2001 from Dr. Fred Greear, an attending Board-certified internist.
4

The statement of accepted facts provided Dr. Goebel advised that the accepted conditions were lumbosacral
sprain and lumbosacral neuritis/radiculitis.

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to the neutral position. Hip and knee range of motion were full and symmetric bilaterally with
5/5 motor strength and intact and symmetric sensation to light touch in all dermatomal
distributions. Dr. Goebel advised that appellant had reached maximum medical improvement on
or about October 11, 1985 and had no residuals of his October 10, 1972 employment injury, with
no radiculopathy or objective impairment of his back condition and no objective findings to
support a diagnosis of lumbosacral sprain, lumbosacral neuritis or radiculitis. In an attached
work capacity evaluation, he advised that appellant could work eight hours a day with a
permanent 35-pound restriction on pushing, pulling and lifting, stating that these were placed
following appellant’s spinal surgery in 1971.
On June 19, 2008 the Office proposed to modify appellant’s wage-earning capacity to
zero wage loss and terminate his medical benefits, based on Dr. Goebel’s June 3, 2008 opinion.
On July 1, 2008 appellant disagreed and submitted an October 13, 1972 letter describing his
condition in 1971 and 1972.
By decision dated July 28, 2008, the Office terminated appellant’s medical benefits and
modified his wage-earning capacity to zero.
On August 25, 2008 appellant requested reconsideration. In an August 25, 2008 work
capacity evaluation Dr. Greear advised that appellant could not work eight hours a day due to
back and right lower extremity pain, but could work four hours daily with permanent restrictions
of minimal twisting, bending, stooping, pulling, lifting, squatting, kneeling and climbing, no
reaching overhead and one hour sitting, walking, standing, operating a motor vehicle, repetitive
movements of the wrist and elbow and pushing with a 20-pound weight restriction.
By decision dated September 22, 2008, the Office denied modification of the July 28,
2008 decision, finding that, as Dr. Greear provided no objective medical findings to support his
conclusions, the weight of the medical evidence continued to rest with the opinion of Dr. Goebel.
On November 11, 2008 appellant again requested reconsideration and submitted evidence
previously of record.5 He noted that on July 20, 1972 an employing establishment physician
placed a 35-pound lifting restriction, that was verified by the plant superintendent on
January 19, 1973. Appellant argued that Dr. Goebel’s report supported that he could not return
to his former employment.
In a November 19, 2008 decision, the Office denied appellant’s reconsideration request,
finding that the evidence and argument submitted were duplicative.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that, a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
5

This consisted of correspondence dated January 19, 1973, Dr. Shaffer’s April 30, 2001 work capacity
evaluation, Dr. Goebel’s June 3, 2008 report and work capacity evaluation and Dr. Greear’s August 25, 2008 work
capacity evaluation.

3

remains undisturbed until properly modified.6 The Office’s procedure manual provides that, “[i]f
a formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”7 Once the wage-earning capacity of an
injured employee is determined, a modification of such determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was, in
fact, erroneous.8 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.9
In addition, Chapter 2.814.11 of the Office’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. Office procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If the Office is seeking modification, it must establish that the original rating was in error,
that the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.10
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a lumbosacral sprain and lumbosacral
neuritis and radiculitis caused by an October 10, 1972 employment injury. The Board finds that
the Office presented sufficient medical evidence to modify appellant’s wage-earning capacity
effective August 3, 2008. In a comprehensive report dated June 3, 2008, Dr. Goebel, Boardcertified in orthopedic surgery, reviewed the complete record and appellant’s complaints. He
advised that there were no objective findings of the accepted conditions, noting physical
examination findings of a normal stance and gait and that appellant could forward flex 90
degrees and stand to the neutral position. Hip and knee range of motion were full and symmetric
bilaterally with 5/5 motor strength and sensation to light touch was intact and symmetric in all
dermatomal distributions. Dr. Goebel concluded that appellant had reached maximum medical
improvement with regard to the employment injuries on or about October 11, 1985 and did not
require further medical treatment. He advised that appellant could work eight hours a day with a
35-pound weight restriction, due to back surgery in 1971 that predated the employment injury.

6

Katherine T. Kreger, 55 ECAB 633 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
8

Stanley B. Plotkin, 51 ECAB 700 (2000).

9

Id.

10

See Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.814.11 (June 1996).

4

The relevant medical evidence submitted by appellant includes a May 10, 2006 report
provided by Dane Harden, a physician’s assistant. Registered nurses, licensed practical nurses
and physicians’ assistants are not “physicians” as defined under the Federal Employees’
Compensation Act.11 Their, opinions are therefore of no probative value.12 In an August 25,
2008 report, Dr. Greear advised that appellant could work only four hours a day with permanent
restrictions on his physical ability and a 20-pound weight restriction. However, he did not
address whether the restrictions were due to appellant’s accepted conditions or were caused by
the October 10, 1972 employment injury. Appellant began private employment in 1978 and
continued until he retired in 2004 or 2005. There is insufficient medical evidence to establish
that his current conditions were caused by the October 10, 1972 employment injuries.
The Board finds that the Office properly modified the March 22, 1978 wage-earning
capacity decision, as amended on August 17, 1978, on the grounds that appellant’s employmentrelated condition had changed. The June 3, 2008 report of Dr. Goebel, who advised that
appellant had no residuals of the October 6, 1984 employment injury, shows that there was a
material change in the nature and extent of his employment-related conditions, i.e., for the better,
such that he no longer had wage loss due to his accepted conditions. He provided rationale for
his opinion, explaining that appellant had no objective findings of his accepted conditions and
that the 35-pound weight restriction predated the employment injury. The Office therefore
properly reduced appellant’s wage-loss compensation to zero effective August 3, 2008.13
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment. The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.14
ANALYSIS -- ISSUE 2
The Board finds that the Office met its burden of proof to terminate appellant’s
authorization for medical treatment for his accepted lumbosacral sprain and lumbosacral neuritis
and radiculitis caused by an October 10, 1972 employment injury. As noted, in a wellrationalized opinion, Dr. Goebel advised that appellant had no current employment-related

11

5 U.S.C. §§ 8101-8193.

12

Roy L. Humphrey, 57 ECAB 238 (2005).

13

L.C., 60 ECAB ____ (Docket No. 08-2271, issued August 6, 2009).

14

Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

conditions and did not require further medical treatment.15 Thus, the Office met its burden of
proof to terminate appellant’s medical benefits.16
LEGAL PRECEDENT -- ISSUE 3
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.17 Section 10.608(a) of Office regulations provide that a timely request
for reconsideration may be granted if the Office determines that the employee has presented
evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).18 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.19 Section 10.608(b) provides that when a request for
reconsideration is timely but fails to meet at least one of these three requirements, the Office will
deny the application for reconsideration without reopening the case for a review on the merits.20
ANALYSIS -- ISSUE 3
With his request for reconsideration on November 11, 2008, appellant argued that
Dr. Goebel’s report supported that he could not return to his former employment. A review of
Dr. Goebel’s June 3, 2008 report, however, indicates that he advised that appellant could work
eight hours a day with the only restriction that he not lift, push or pull greater than 35 pounds.
Dr. Goebel added that the restrictions were placed after appellant’s spinal surgery in 1971. The
Board notes that the 1971 spinal surgery preceded appellant’s October 10, 1972 employment
injury and was not accepted as employment related. While the reopening of a case may be
predicated solely on a legal premise not previously considered, such reopening is not required
where the legal contention, as in this case, does not have a reasonable color of validity.21
Consequently, appellant was not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under section 10.606(b)(2).22

15

E.J., 59 ECAB ___ (Docket No. 08-1350, issued September 8, 2008).

16

Kathryn E. Demarsh, supra note 14.

17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.608(a).

19

Id. at § 10.608(b)(1) and (2).

20

Id. at § 10.608(b).

21

M.E., 58 ECAB ____ (Docket No. 07-1189, issued September 20, 2007).

22

20 C.F.R. § 10.606(b)(2).

6

With respect to the third requirement under section 10.6069b)(2), the evidence appellant
submitted with his November 11, 2008 reconsideration request was previously of record.23
Evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a case.24 Appellant therefore did not submit
relevant and pertinent new evidence not previously considered by the Office and the Office
properly denied his reconsideration request.25
CONCLUSION
The Board finds that the Office met its burden of proof to modify the May 13, 1988
wage-earning capacity determination to zero and to terminate appellant’s medical benefits. The
Board further finds that the Office properly refused to reopen his claim for further consideration
of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 19, September 22 and July 28, 2008 are affirmed.
Issued: November 6, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

23

Supra note 5.

24

D’Wayne Avila, 57 ECAB 642 (2006).

25

See Johnnie B. Causey, 57 ECAB 359 (2006).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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Appearances:
Steven V. Hunt, for the appellant
Office of Solicitor, for the Director

Docket No. 12-886
Issued: March 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 13, 2012 appellant, through her representative, filed a timely appeal from a
February 24, 2012 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.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
1

On December 21, 2012 the Board dismissed the appeal for lack of representative authorization. Order
Dismissing Appeal, Docket No. 12-886 (issued December 21, 2012). On February 2, 2015 the Board issued an order
vacating its dismissal as appellant had submitted a signed authorization designating Mr. Hunt as her representative
prior to the Board’s issuance of the December 21, 2012 dismissal. Order Vacating Prior Board Order and
Reinstating Appeal, Docket No. 12-886 (issued February 2, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 11, 2011 appellant, then a 50-year-old modified mail processing clerk, filed
an occupational disease claim alleging that she experienced stomach pains, loss of memory,
headaches, sleeplessness, dizziness, loss of appetite, panic attacks, and a lack of recovery from a
physical injury to her shoulders, neck, and upper extremities due to stress at work. She related
that her psychologist attributed her condition to work injuries, violations of her work restrictions,
and adverse remarks from management about her work. The employing establishment noted that
appellant was already on the periodic rolls under a separate OWCP file number.
By letter dated February 16, 2011, OWCP requested additional information from the
employing establishment, including statements from a knowledgeable supervisor on the accuracy
of all allegations. In another February 16, 2011 letter, it requested that appellant provide
additional factual and medical information.
On March 2, 2011 the employing establishment related that appellant had not worked
since June 17, 2010 and that she “was not asked to work overtime, meet any deadlines, quotas,
[or] travel intense assignments.” A coordinator for the National Reassessment Program
indicated that appellant performed modified duty sitting for eight hours per day in the Postal
Automated Redirection System unit, and that the position was not stressful, but rather “quiet,
self-paced [and] self-empowered.” She further noted that there were no staffing shortages during
the relevant time period.
On March 23, 2011 OWCP received a narrative statement from appellant dated
September 30, 2010, signed February 7, 2011, and which had originally been submitted under
file number xxxxxx116. Appellant related that she sustained a right shoulder injury in
September 2004 and a left shoulder and bilateral elbow injury on August 20, 2007. She began
working limited duty after her injuries.3 Appellant was afraid to take off work because she
thought she might lose her job. She stated, “I pushed, lifted and carried mail from one place to
another even if it was too heavy, with or without help, because I was going to be suspended if I
did not. I did complain and was shouted at by the supervisors, and told that I was already not
doing anything, and any less I need[ed] to stay at home.” On one occasion a supervisor told her
to finish all the work before she went home even though it was too much for one person. She
claimed that the employing establishment assigned appellant to work in the guard shack one
evening, even though she did not have proper clothing. Appellant stated, “We (modified job
assignment employees on light duty) were labeled, called names and ostracized.” She related,
“Over the past two years everything got worse and worse. It seemed like my body refused to
take the everyday work against my restrictions, pushing, carrying ostracism by other workers and
moving mail all night long.”
By decision dated May 19, 2011, OWCP denied appellant’s emotional condition claim.
It found that she had not established any compensable factors of employment.

3

The alleged traumatic physical injuries are not before the Board although they are mentioned in the facts.
Appellant filed an occupational disease claim asserting that she suffers from an emotional psychiatric condition.
The question before the Board is whether the occupational disease claim is compensable.

2

On May 24, 2011 appellant requested a review of the written record by an OWCP hearing
representative. In a statement dated April 18, 2011, received by OWCP on June 6, 2011, she
discussed her history of employment injuries and resulting limitations. Appellant related that her
supervisors did not abide by her restrictions. In May 2006 she received discipline for not
working safely when a door fell on her shoulder. A coworker confirmed that the accident was
not her fault. In 2006 a supervisor instructed appellant to complete an entire all-purpose
container of mail by herself before she went home, which violated “[t]ime compliance.” In
February 2009 a night supervisor instructed her to perform regular work casing mail in violation
of her shoulder restrictions. In March 2009 a night supervisor made appellant and a coworker
push an 80-pound hamper with a broken wheel loaded with 100 pounds of mail in violation of
her 10-pound restriction. In September 2009 a supervisor told her that she needed to work faster.
In April 2010 a supervisor forced appellant to work on a machine that violated her lifting
restrictions of no reaching over the shoulder. A coworker threatened her when she went on
break and other coworkers cursed her because she was on modified duty.
In a statement dated May 19, 2006, a coworker related that on May 18, 2006 she saw a
cage open and fall on appellant’s left shoulder. In another statement dated May 19, 2006,
appellant related that the door of an all-purpose container fell on her shoulder.
By decision dated September 22, 2011, an OWCP hearing representative affirmed the
May 19, 2011 decision. He found that appellant had not submitted evidence supporting that the
employing establishment harassed or discriminated against her or violated her work restrictions.
On December 12, 2011 appellant, through her representative, requested reconsideration.
He argued that the employing establishment had not refuted specific allegations as required by
20 C.F.R. § 10.117. The only individual who responded had no personal knowledge of the work
environment. Appellant’s representative noted that OWCP had not obtained any evidence to
disprove the allegations.
In a statement signed January 9, 2012, a coworker, related that in 2006 a supervisor
instructed appellant to finish a container of returned mail before her shift ended. Appellant
responded that she had to work “at her own pace” and thus could not finish the mail. After an
argument, she stayed and finished the mail “with tears in her eyes due to [the] pain of working
faster than normal.” The coworker stated, “In fact, our unit was designed for limited[-]duty
employees. However, all of the letter trays with returned mail average[d] 20 [to] 30 [pounds] a
tray. We were responsible for lifting the trays to process mail and for pushing the equipment to
the line for dispatching mail. No one was assigned to the unit to help with lifting or pushing.”
By decision dated February 24, 2012, OWCP denied modification of tis May 19, 2011
decision.
On appeal appellant’s representative argues that there is sufficient medical evidence in
her other claims for physical injuries that would support this claim and those claims should be
combined with the current claim. He argues that the employing establishment’s response was
insufficient and that appellant worked outside her restrictions.

3

LEGAL PRECEDENT
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.4 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.5
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.6 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.7
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.8
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.9 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.10 The issue is whether the claimant has
submitted sufficient evidence under FECA to establish a factual basis for the claim by supporting
his or her allegations with probative and reliable evidence.11 The primary reason for requiring
factual evidence from the claimant in support of her allegations of stress in the workplace is to

4

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

5

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

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

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

8

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

9

See Michael Ewanichak, 48 ECAB 364 (1997).

10

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

11

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

4

establish a basis in fact for the contentions made, as opposed to mere perceptions of the claimant,
which in turn may be fully examined and evaluated by OWCP and the Board.12
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.14
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim because she
failed to establish any compensable employment factors. The Board must, therefore, initially
review whether these alleged incidents and conditions of employment are covered employment
factors under the terms of FECA.
Appellant has not attributed her emotional condition to her regular or specially assigned
duties under Cutler.15 Instead, she alleged that she sustained stress from supervisors assigning
her work outside her restrictions and from harassment and discrimination.
In Thomas D. McEuen,16 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.17
12

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

13

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

14

Id.

15

See Lillian Cutler, supra note 4.

16

See Thomas D. McEuen, supra note 6.

17

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

5

Appellant asserted that in May 2006 the employing establishment wrongfully disciplined
her after a door fell on her shoulder and assigned her to work in a guard shack when she did not
have proper clothing. The assignment of work and matters involving discipline are
administrative functions of the employer and not a duty of the employee.18 As discussed, an
administrative or personnel matter will be considered to be an employment factor where the
evidence discloses error or abuse on the part of the employing establishment.19 Appellant has
not submitted any evidence establishing a factual basis for her allegation that she received
discipline after a door fell on her in 2006. Further, she has not provided any evidence of error or
abuse by the employing establishment in assigning her to work in the guard shack. Thus,
appellant has not established a compensable employment factor.
Appellant additionally alleged that she sustained stress as a result of being assigned work
outside her physical restrictions. She related that she worked limited duty following injuries in
September 2004 and August 2007. Appellant maintained that in 2006 a supervisor advised her
to offload an all-purpose container before she went home, in February 2009 a supervisor made
her perform regular mail casing duties, and in March 2009 a supervisor instructed her to push a
heavy hamper loaded with mail, all of which she contended violated her work restrictions from
prior employment injuries.
Appellant submitted a statement dated January 9, 2012 from a coworker who related that
in 2006 a supervisor told appellant to finish a container of mail before her shift ended. She
advised the coworker that she had to work at her own pace but eventually stayed and finished the
task, allegedly crying because of the pain. The coworker further related that all of the employees
in the limited-duty unit lifted trays of mail weighing 20 to 30 pounds without assistance. In a
statement dated March 2, 2011, the employing establishment advised that appellant worked
sedentary duty, sitting eight hours a day on work that was “self-paced” with no heavy duties.
Being required to work beyond one’s physical limitations may constitute a compensable
employment factor if substantiated by probative and reliable evidence.20 Appellant did not,
however, provide any details regarding her modified work duties or her restrictions from her
accepted injuries. Accordingly, she has not substantiated that she was forced to work outside her
limitations.21
Appellant generally maintained that coworkers cursed her, harassed her, and ostracized
her because she worked modified employment. Harassment and discrimination by supervisors
and coworkers, if established as occurring and arising from the performance of work duties, can

18

C.E., Docket No. 13-1860 (issued January 17, 2014); Donney T. Drennon-Gala, 56 ECAB 469 (2005); Lori A.
Facey, 55 ECAB 217 (2004).
19

Id.

20

M.R., Docket No. 14-380 (issued August 25, 2014); Diane C. Bernard, 45 ECAB 223 (1993); Lizzie McCray,
36 ECAB 419 (1985).
21

See W.K., Docket No. 06-1278 (issued December 26, 2006); George A. Ross, 43 ECAB 346 (1991). Gary E.
Kruger, Docket No. 05-1110 (issued September 30, 2005).

6

constitute a compensable work factor.22 A claimant, however, must substantiate allegations of
harassment and discrimination with probative and reliable evidence.23 Appellant did not submit
any factual evidence in support of her allegations and thus has not established a compensable
work factor.
As appellant failed to establish any compensable factors of employment, she did not meet
her burden of proof.24
On appeal appellant’s representative argues that the current file should be combined with
the file for the June 14, 2010 employment injury. The Board notes that, if appellant sustained an
emotional condition as a consequence of a physical injury, she can pursue the claim under the
other file number.
Appellant’s representative also contends that the employing establishment’s response was
insufficient. The Board finds that there is no reason to combine the files and that it might
complicate the future administration of the claim. Appellant has not submitted any evidence
detailing her work restrictions or otherwise providing specific information regarding her claim
warranting further development.
Appellant’s representative also argues that appellant worked with improper and faulty
equipment, as evidenced by the door falling on her shoulder in 2006.25 Appellant has not shown,
however, error by the employing establishment in supplying her with work equipment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty.

22

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

23

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

24

Additionally, the Board notes that appellant did not submit any supporting medical evidence. As appellant has
not established any compensable employment factors, the Board need not consider the medical evidence of record;
see Hasty P. Foreman, 54 ECAB 427 (2003).
25

The alleged incident from 2006 in which appellant states she was injured when a piece of equipment struck her
left shoulder would be a traumatic, physical injury if established. The question is not before the Board because the
claim before the Board is for an alleged psychiatric, emotional condition which appellant describes as an
occupational disease.

7

ORDER
IT IS HEREBY ORDERED THAT the February 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2015
Washington, DC

Patricia Howard Fitzgerald, Deputy 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
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, JENNINGS BRANCH
STATION, St. Louis, MO, Employer
__________________________________________

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

Docket No. 17-0340
Issued: November 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 2, 2016 appellant filed a timely appeal from an August 4, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish more than one percent
permanent impairment of the left arm, for which she previously received a schedule award.
On appeal appellant asserts that she continues to have pain, swelling, and stiffness in her
hand, as well as problems with sleeping.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 25, 2012 appellant, then a 40-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 24, 2012 she injured her left wrist on an
employing establishment van door. She stopped work on September 27, 2012. Appellant began
treatment with Dr. S. Vic Glogovac, a Board-certified orthopedic surgeon. On November 27,
2012 OWCP accepted the condition of a left wrist contusion. A December 12, 2012
electrodiagnostic study of the left upper extremity demonstrated sensory carpal tunnel syndrome.
On January 31, 2013 OWCP expanded the claim to include the condition of left carpal tunnel
syndrome.
On February 20, 2013 Dr. Glogovac performed left carpal tunnel decompression.
Appellant returned to full duty on May 24, 2013. On July 11, 2013 she filed a notice of
recurrence of disability (Form CA-2a) which was accepted by OWCP on August 28, 2013.
Appellant returned working limited duty and missed intermittent periods thereafter.
In a February 10, 2014 decision, OWCP denied her claim for continued disability
compensation, noting that Dr. Glogovac released her to regular duty for the left hand on
January 24, 2014.2
On December 21, 2015 appellant filed a claim for a schedule award (Form CA-7). By
report dated March 4, 2016, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and
OWCP medical adviser, noted his review of the record. He advised that appellant should be
referred for a second opinion evaluation.
In March 2016 OWCP referred appellant to Dr. Richard T. Katz, a Board-certified
physiatrist, for a second opinion and impairment evaluation. In a May 24, 2016 report, Dr. Katz
described appellant’s complaints of left hand pain, weakness, and numbness. He reviewed the
medical record, noting that a December 12, 2012 left upper extremity electromyography and
nerve conduction velocity (EMG/NCV) studies demonstrated sensory carpal tunnel syndrome,
and that appellant’s adjusted QuickDASH score was 57. Dr. Katz advised that appellant’s left
wrist range of motion was full with no instability.
He utilized Table 15-23,
Entrapment/Compression Neuropathy Impairment, of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides),3
finding that she had a test findings modifier of grade 1 due to a conduction delay, a grade 2
modifier for history due to significant intermittent symptoms, and a grade 1 modifier for physical
examination. Dr. Katz averaged the modifiers, finding a grade 1 modifier which had a default
value of two percent. Based on appellant’s QuickDASH score of 57, he modified her left upper
extremity impairment to total three percent.
In a June 14, 2016 report, Dr. Morley Slutsky, an OWCP medical adviser who is Boardcertified in occupational medicine, reviewed the record, including Dr. Katz’s report. He advised
2

In a January 24, 2014 report, Dr. Glogovac advised that appellant could return to full duty with regard to her left
hand.
3

A.M.A., Guides (6th ed. 2009).

2

that there was no ratable impairment under Table 15-23 because the December 12, 2012
EMG/NCV used to identify a test findings grade did not meet the standards identified in
Appendix 15-B, Electrodiagnostic Evaluation of Entrapment Syndromes, found at page 487 of
the A.M.A., Guides.4 Rather, the medical adviser found that the diagnosis-based impairment
(DBI) method was the preferred, rating method. He determined that, under Table 15-3, Wrist
Regional Grid, using the diagnosis of nonspecific left upper extremity pain, appellant had a class
1 impairment. After applying the net adjustment formula, Dr. Slutsky concluded that appellant
had one percent left upper extremity impairment, with the date of maximum medical
improvement May 24, 2016.
By decision dated August 4, 2016, appellant was granted a schedule award for one
percent impairment of the left upper extremity, for 3.12 weeks, to run from May 24 to
June 14, 2016.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.6 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.7
The sixth edition of the A.M.A. Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.

4

OWCP’s medical adviser specifically noted that the measurements for distal motor latency and distal peak
latency did not meet the requirements found in Appendix 15-B and further found that conduction block and axon
loss had not been established on the December 12, 2012 EMG/NCV.
5

See 20 C.F.R. §§ 1.1-1.4.

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
6

7

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

5 U.S.C.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
The issue is whether appellant has more than one percent permanent impairment of her
left arm, for which she previously received a schedule award.
The Board finds this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.10
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.11 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians had shown
inconsistency in the application of the A.M.A., Guides, the Board found that OWCP could no
longer ensure consistent results and equal justice under the law for all claimants.12
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the March 13, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.13

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

T.H., Docket No. 14-0943 (issued November 25, 2016).

11

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

12

Supra note 10.

13

FECA Bulletin No. 17-06 (issued May 8, 2017).

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 4, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: November 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VETERANS
ADMINISTRATION MEDICAL CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 19-0988
Issued: November 4, 2019

Case Submitted on the Record

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

JURISDICTION
On April 4, 2019 appellant filed a timely appeal from a January 4, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a back condition
causally related to her accepted October 9, 2018 employment incident.
FACTUAL HISTORY
On October 11, 2018 appellant, then a 54-year-old vocational nurse, filed a traumatic injury
claim (Form CA-1) alleging that on October 9, 2018 she sustained an injury to her lower back
when she was helping place a patient from a gurney into his wheelchair while in the performance
of duty. She did not stop work. The employing establishment controverted the claim contending
that an investigation of the incident did not support appellant’s statements because the patient was
able to assist in his transfer to the wheelchair and a witness provided an account inconsistent with
appellant’s statements.
In a development letter dated November 27, 2018, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It specifically requested that
she submit a medical report from her attending physician which provided a diagnosis and an
opinion, supported by medical rationale, as to how the reported employment incident caused or
aggravated a medical condition. OWCP also provided a questionnaire for completion and afforded
appellant 30 days to submit the necessary evidence. Appellant did not submit any additional
evidence.
By decision dated January 4, 2019, OWCP accepted that the incident occurred as alleged,
but denied appellant’s claim finding that she had not submitted any medical evidence containing
a medical diagnosis in connection with the October 9, 2018 employment incident. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an employee of the United States within the meaning of
FECA, that the claim was filed within the applicable time limitation, that an injury was sustained
in the performance of duty as alleged, and that any specific condition or disability claimed is
causally related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.5

3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); R.M., Docket No. 18-1281 (issued March 6, 2019); see Jacquelyn L. Oliver, 48 ECAB
232, 235-36 (1996).
5

S.G., Docket No. 18-1373 (issued February 12, 2019); Michael E. Smith, 50 ECAB 313 (1999).

2

To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
An employee may establish that an injury occurred in the performance of duty as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the accepted incident.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 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 employee.11
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.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted October 9, 2018 employment incident.
The Board finds that appellant has not submitted medical evidence from a physician
containing a diagnosis in connection with the October 9, 2018 employment incident.13 The only
evidence appellant submitted to the record was her completed Form CA-1. OWCP advised
appellant in a November 27, 2018 development letter that further medical evidence was necessary
to establish her claim. It also afforded her an opportunity to submit a narrative medical report
from her physician, which included a diagnosis and an opinion regarding causal relationship.14
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

C.L., Docket No. 18-1732 (issued April 2, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine
Pendleton, 40 ECAB 1143 (1989).
8
C.L., id.; R.M., supra note 4; B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB
354 (1989).
9

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11
E.V., Docket No. 18-1617 (issued February 26, 2019); see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L.
Fowler, 45 ECAB 365 (1994).
12

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

13

C.L., supra note 7; see E.B., Docket No. 18-0014 (issued July 12, 2018); L.F., Docket No. 17-1511 (issued
November 28, 2017); J.P., Docket No. 14-0087 (issued March 14, 2014).
14

See A.F., Docket No. 17-1374 (issued March 19, 2019).

3

However, appellant did not respond to this request. She has the burden of proof to submit
rationalized medical evidence establishing that a diagnosed medical condition was causally related
to the accepted November 5, 2018 employment incident.15 Appellant has not submitted such
evidence and thus has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted October 9, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

See R.C., Docket No. 18-1639 (issued February 26, 2019).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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Appearances:
Mark Coby, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-821
Issued: November 9, 2010

Case Submitted on the Record

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

JURISDICTION
On February 1, 2010 appellant, through his attorney, filed a timely appeal of a
January 13, 2010 Office of Workers’ Compensation Programs’ merit decision denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant established that he sustained a shoulder condition due to
factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. In a February 26, 2008 decision, the
Board found that appellant did not establish that his left shoulder condition was related to his
employment as a labor custodian.1 The reports of Dr. Todd Pope, an attending Board-certified
1

Docket No. 07-1949 (issued February 26, 2008). The Board found that appellant’s work included such duties as
mopping, sweeping and overhead dusting.

internist, were found insufficient to establish causal relation. The facts of the case as set forth in
the Board’s prior decision are incorporated herein by reference. Appellant, through his attorney,
requested reconsideration before the Office. In a July 23, 2008 decision, the Office denied
appellant’s request finding it was not timely filed and did not establish clear evidence of error.
Appellant appealed this decision to the Board.2 In a June 22, 2009 order, the Board remanded
the case to the Office finding that appellant’s request was timely filed. The Office was directed
to conduct a further review under the appropriate regulatory standard.3
Prior to the Board’s remand, appellant submitted the February 25, 2008 treatment note of
Dr. Walter Andrew Semkiw, Board-certified in occupational medicine at Kaiser Permanente.
Dr. Semkiw provided a review of appellant’s previous evaluation on November 22, 2006 and
noted that right arthroscopy, decompression and possible rotator cuff repair had been considered.
On April 9, 2008 he obtained a history that appellant injured his right shoulder while using an
industrial floor buffer at work on August 17, 2006. Dr. Semkiw advised that appellant
experienced intermittent pain in the shoulder and also had left shoulder pain with prolonged use.
He noted that appellant had declined surgery and had injections into the right shoulder which
were helpful. Dr. Semkiw listed range of motion findings and reviewed a January 20, 2007
magnetic resonance imaging scan of the right shoulder. He diagnosed a full thickness rotator
cuff tear of the supraspinatus tendon, infraspinatus tendinopathy, undersurface spurring of the
acromioclavicular (AC) joint and mildly increased fluid. Dr. Semkiw also diagnosed a left
shoulder strain due to compensatory use and provided work restrictions.
On May 2, 2008 Dr. Semkiw reiterated the history of appellant injuring his right shoulder
on August 17, 2006 while using a floor buffer at work. He noted that appellant also attributed
his condition to cleaning, scrubbing, waxing, dusting and other activities starting in 2003.
Dr. Semkiw stated: “It is my opinion that this patient’s shoulder condition was caused by his
work-related job duties that involve repetitive motion of the right arm. It is my opinion that his
right shoulder condition is work related….” Dr. Semkiw noted that appellant also had left
shoulder pain, which he attributed to cooking, housework and personal grooming with the left
hand. He provided findings on examination of both shoulders and repeated the diagnostic
studies from 2006 and 2007. Dr. Semkiw provided additional treatment records dated through
December 18, 2008.
Appellant also submitted additional treatment notes from Dr. Pope. On February 2, 2007
Dr. Pope addressed a telephone call with appellant, noting that the compensation claim had been
denied as Dr. Pope had filled out paperwork stating a left shoulder problem when the actual
problems were on the right side. It was noted that appellant would continue physical therapy and
follow up.
In a July 22, 2009 decision, the Office reviewed the merits of appellant’s claim, but
denied modification of its prior decisions. It noted that appellant had filed a separate traumatic
injury claim for the August 17, 2006 incident, which had been denied as the employing

2

Docket No. 09-41 (issued June 22, 2009).

3

See 20 C.F.R. § 10.606(b)(2).

2

establishment controverted injury as appellant was working that day as an acting supervisor and
did not perform services such as buffing the floor.4
On October 15, 2009 appellant, through his attorney, requested reconsideration. He
contended that the medical evidence was sufficient to establish injury to his right shoulder and
that his left shoulder condition was consequential. In a treatment note of October 14, 2009,
Dr. Semkiw noted that appellant returned with a letter that stated the physician did not explain
how the job caused his shoulder injuries. He stated:
“To reiterate, [appellant] is a 49[-]year[-]old male, a USPS janitor, who injured
his right shoulder while using an industrial floor buffer at work on
August 17, 2006. Patient experienced a sudden, sharp pain in the right shoulder
when moving the buffer from left to right. Causal relationship: moving the heavy
floor buffer at work from side to side caused a rotator cuff tear in the right
shoulder, which was demonstrated on MRI [scan]. The patient has performed
repetitive tasks with the right arm in doing the duties of a janitor, including
cleaning, scrubbing, waxing and polishing of floors, washing walls and ceilings,
dusting furniture and fixtures, painting and doing gardening work. These
activities which the patient started doing in 2003 contributed to the development
of his right shoulder condition.”
Dr. Semkiw also noted that repetitive tasks performed with the right hand at work caused
tendinitis in the right shoulder, which predisposed appellant to the development of a rotator cuff
tear.
By decision dated January 13, 2010, the Office denied modification of its prior decisions.
If found that the medical evidence from Dr. Semkiw was not based on an accurate factual
history, as the only duties accepted were overhead dusting, mopping and sweeping. It was found
that appellant did not perform all the duties as described in the physician’s report. Further, it was
not adequately explained how the accepted duties performed since 2003 caused or contributed to
the right shoulder condition.
LEGAL PRECEDENT
The Office’s regulations define an occupational disease as “a condition produced by the
work environment over a period longer than a single workday or shift.”5 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
4

Appellant filed an occupational disease claim under File No. xxxxxx280 attributing his right shoulder condition
to a work incident on August 17, 2006 while using a floor buffer. The Office adjudicated this aspect of the claim as
one for traumatic injury which was denied in a September 13, 2007 decision.
5

20 C.F.R. § 10.5(q).

3

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 evidence required to
establish causal relationship is rationalized medical opinion evidence, based upon a complete
factual and medical background, showing a causal relationship between the claimed condition
and identified factors. The belief of a claimant that a condition was caused or aggravated by the
employment is not sufficient to establish causal relation.6
ANALYSIS
As noted in the Board’s prior decision, appellant’s claim in this case is premised on his
November 1, 2006 occupational disease claim for a right shoulder condition he attributed to
work duties performed since 2003. Appellant’s claim pertaining to a shoulder injury arising
from an August 17, 2006 traumatic incident at work was denied by the Office on September 17,
2007 and is not before the Board in the present appeal.7
In support of his claim, appellant submitted treatment notes from Dr. Semkiw, associated
with Kaiser Permanente. He provided a review of appellant’s prior treatment at the health
facility in 2006, and reported that appellant also reported injuring his right shoulder at work on
August 17, 2006 while using an industrial floor buffer. The 2008 treatment records from
Dr. Semkiw initially addressed the traumatic incident alleged by appellant, but not accepted by
the Office as factually established. On May 2, 2008 he noted that appellant also attributed his
condition to cleaning, scrubbing, waxing, dusting and other work activities in 2003, stating his
opinion that appellant’s right shoulder condition was caused by repetitive motion of the right
arm. This stated conclusion on causal relationship was not otherwise explained by the physician.
It does not appear that Dr. Semkiw was provided an accurate history of the nature of the job
duties appellant performed for his employer. It has been accepted that appellant performed
mopping, sweeping and overhead dusting, but Dr. Semkiw did not explain how such repetitive
work activities would be competent to cause impingement to the shoulder or result in the rotator
cuff tear diagnosed on MRI scan in 2007.
These deficiencies were not cured by the physician’s October 14, 2009 treatment notes.
Again, Dr. Semkiw addressed causal relation in terms of the August 17, 2006 traumatic incident
alleged in appellant’s other claim. He noted that appellant performed other repetitive tasks with
the right arm in his duties as a janitor in 2003 which “contributed to the development of his right
shoulder condition.” In assessing the weight of medical opinion, the Board considers the
opportunity for and thoroughness of the physical examination, the accuracy and completeness of
the physician’s knowledge of the facts and medical history, the care of analysis manifested and
the rationale expressed in support of the physician’s opinion on causal relation.8 In addressing
causal relationship and contribution, Dr. Semkiw provided a conclusion without sufficient
explanation of the nature of the repetitive motions involved in the accepted job duties or why,
6

Lourdes Harris, 45 ECAB 545, 547 (1994).

7

See 20 C.F.R. § 501.2(c).

8

See Nicolette R. Kelstrom, 54 ECAB 570 (2003).

4

over a period of time, such work activities would produce impingement of the shoulder, a full
thickness tear of the rotator cuff or contribute to any tendinopathy of the shoulder joint. The
opinion provided by the physician is not sufficient to establish appellant’s claim due to
occupational factors in his federal employment. The treatment record from Dr. Pope did not
further address the issue of causal relation; rather the physician noted that appellant’s left
shoulder had been erroneously identified as that injured in his employment.
On appeal, counsel contends that the medical evidence is sufficient to establish
appellant’s claim. As discussed, the Board finds that the medical evidence from Dr. Semkiw is
not sufficiently detailed or well reasoned to meet appellant’s burden of proof.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical evidence to establish
his claim of an occupational disease to his right shoulder.
ORDER
IT IS HEREBY ORDERED THAT the January 13, 2010 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2010
Washington, DC

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

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

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

5