United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 15-749
Issued: May 15, 2015

Case Submitted on the Record

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

JURISDICTION
On February 19, 2015 appellant filed a timely appeal from a January 14, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established a back injury causally related to factors of his
federal employment.
On appeal, appellant contends that he was reinjured on November 7, 2013 and his
primary care physician provided a rationalized medical opinion establishing causal relationship
between the accepted employment factors and his diagnosis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 25, 2013 appellant, then a 51-year-old meat cutter leader, filed an
occupational disease claim alleging that on December 9, 1993 he first became aware of his
military-related back injury. He further alleged that on November 7, 2013 he first realized that
his 1993 back injury was aggravated by lifting tons of meat at work for six years.
By letter dated December 5, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested factual and medical evidence. OWCP also
requested that the employing establishment respond to appellant’s allegations and submit
evidence regarding his work duties and any medical evidence, if he had been treated at its
medical facility.
In treatment notes dated December 11 and 13, 2013, Dr. Emilio Cosio, a chiropractor,
provided impressions of lumbosacral disc degeneration and sprain and lumbago. He addressed
appellant’s physical therapy treatment and placed him on light-duty status.
In treatment notes dated December 9, 2013 and January 3, 2014, Dr. Majed B. Hassan, an
emergency medicine specialist, noted appellant’s complaints of lower back pain that became
achy and aggravated when bending, extension, and lifting. He provided findings on physical
examination and impressions of lumbar disc displacement, lumbar/lumbosacral disc
degeneration, lumbosacral sprain, and lumbago. Dr. Hassan addressed appellant’s physical
therapy treatment and advised that he work on full-duty status.
In a January 23, 2014 decision, OWCP denied appellant’s occupational disease claim. It
found that there was no medical report signed by a physician which explained the causal
relationship between a diagnosis and the established work factors.
On February 20, 2014 appellant requested a telephone hearing with an OWCP hearing
representative. In a December 9, 2013 statement, he stated that he performed the claimed work
activities of lifting meat three times a week, three hours a day for six years.
Appellant submitted emergency room records from Saint Vincent’s Healthcare
Emergency Services. In a November 7, 2013 report, Lauren Bell, a registered nurse practitioner,
diagnosed low back pain. Unsigned patient discharge instructions dated November 7, 2013
reiterated the diagnosis of low back pain, and provided information about appellant’s medication,
and follow-up instructions. In a November 7, 2013 lumbar x-ray report, Dr. Zachary E. Brown, a
Board-certified radiologist, found sacralization of the L5 vertebral body which could be a source
of pain, multilevel anterior osteophytes, disc space narrowing from L1-2 through L3-4, and mild
facet arthropathy. There was no compression fracture.
In a November 21, 2013 treatment note, Grace Marchant, a registered nurse practitioner,
indicated that appellant was being evaluated for his tennis elbow. She noted a history that on
November 5, 2013 he injured his back at work and received medical treatment in an emergency
room. Ms. Marchant provided findings on examination and an impression of benign essential
hypertension, lupus erythematosus, and elbow lateral epicondylitis.

2

In a December 4, 2013 treatment note, Dr. Hassan provided a history of appellant’s
medical, social, and family background. He listed examination findings and an impression of
lumbosacral spondylosis without myelopathy, displacement of the lumbar disc without
myelopathy, degenerative lumbar/lumobosacral intervertebral disc, spinal stenosis of the lumbar
without neurogen claudification, and muscle spasm. Dr. Hassan set forth appellant’s physical
restrictions. In a November 26, 2014 Florida State Workers’ Compensation Medical Treatment
Form, he stated that appellant had work-related lumbago. Dr. Hassan advised that appellant had
a preexisting condition that was exacerbated by the diagnosed condition based on a clear
correlation between his objective relevant physical findings and his subjective complaints. He
stated that no clinical services were indicated at that time. Dr. Hassan concluded that appellant
could return to his activities with certain limitations.
In treatment notes dated January 24 to February 10, 2014, Dr. William C. Thomas, a
Board-certified family practitioner, noted appellant’s complaint of low back pain. He provided
findings on physical examination and diagnosed lumbar disc displacement, lumbar/lumbosacral
disc degeneration, lumbago, and lumbosacral sprain. Dr. Thomas indicated that appellant could
perform full-duty work.
In treatment notes dated January 27 to February 5, 2014, Dr. Cosio provided findings on
examination which included subluxation on L2, L3, L4, and T7. He reiterated his diagnoses of
lumbar/lumbosacral disc degeneration, lumbago, and lumbar sprain. Dr. Cosio diagnosed
lumbar disc displacement and somatic dysfunction in the thoracic region. He addressed
appellant’s physical therapy treatment.
By decision dated January 14, 2015, the hearing representative affirmed the January 23,
2014 decision. He found that none of the physicians of record provided a rationalized medical
opinion relating appellant’s diagnosed conditions to his accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 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.4
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
2

5 U.S.C. §§ 8101-8193.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

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statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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.5 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his or her belief that the
condition was caused by his or her employment is sufficient to establish a causal relationship.6
ANALYSIS
OWCP accepted that appellant lifted meat at work while working as a meat cutter leader
at the employing establishment. The Board finds that the medical evidence of record is
insufficient to establish that he sustained a back injury caused or aggravated by the accepted
work factor.
Dr. Hassan’s November 26, 2014 Florida State Workers’ Compensation Medical
Treatment Form found that appellant had a preexisting condition that was exacerbated by his
work-related lumbago. He stated that there was a clear correlation between the objective
physical findings and appellant’s subjective complaints. However, Dr. Hassan did not identify
the preexisting condition, his objective findings on examination, or appellant’s subjective
complaints. Moreover, he did not provide an opinion explaining how the accepted employment
factor caused or aggravated the preexisting condition and diagnosed condition.7 Dr. Hassan’s
treatment notes do not provide any opinion as to whether appellant’s diagnosed lumbar
conditions were caused or aggravated by the established employment factor. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value.8
Likewise, Dr. Thomas’ treatment notes and Dr. Brown’s diagnostic test results are of
limited probative value. Neither physician provided an opinion stating that the diagnosed lumbar
conditions were caused or aggravated by the accepted work factor.9

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id. at 351-52.

6

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

7

See S.S., 59 ECAB 315 (2008) (medical reports not containing rationale on causal relation are entitled to little
probative value and are generally insufficient to meet an employee’s burden of proof).
8

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
9

Id.

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The treatment notes dated January 27 to February 5, 2014 of Dr. Cosio, a chiropractor,
diagnosed subluxation at the L2, L3, L4, and T7 levels. Dr. Cosio addressed appellant’s medical
treatment and work capacity. Section 8101(2) of FECA10 provides that the term physician, as
used therein, includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist and subject to regulations by the Secretary.11 Dr. Cosio did not
state that he based his subluxation diagnosis on a review of x-rays. Without a diagnosis of a
spinal subluxation from x-ray, a chiropractor is not considered a physician under FECA and his
opinion does not constitute competent medical evidence.12
The November 7, 2013 report from Ms. Bell and November 21, 2013 treatment note from
Ms. Marchant, registered nurse practitioners, have no probative value in establishing appellant’s
claim as nurse practitioners are not considered physicians under FECA.13
The unsigned discharge instructions are insufficient to establish appellant’s claim. A
report that is unsigned or bears an illegible signature lacks proper identification as a physician
and cannot be considered probative medical evidence.14
On appeal, appellant contended he was reinjured on November 7, 2013 and his primary
care physician provided a rationalized medical opinion which establishes a causal relationship
between the accepted employment trauma and his diagnosis. As discussed, the medical evidence
did not contain a rationalized medical opinion addressing whether he sustained a back injury
caused or aggravated by the established employment factor.
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 failed to establish that he sustained a back injury
causally related to factors of his federal employment.

10

5 U.S.C. § 8101(2).

11

See 20 C.F.R. § 10.311.

12

See Jay K. Tomokiyo, 51 ECAB 361, 367-8 (2000).

13

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); G.A.,
Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse had no probative medical value as a
nurse is not a physician as defined under FECA); Roy L. Humphrey, 57 ECAB (2005).
14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the January 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2015
Washington, DC

Patricia H. 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
__________________________________________
L.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 14-247
Issued: May 28, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant filed a timely appeal of the May 15, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). She also appealed a
September 25, 2013 nonmerit decision which denied her request for reconsideration. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an
occupational disease in the performance of duty; and (2) whether OWCP properly denied
appellant’s request for reconsideration pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. §§ 8101-8193.

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On February 14, 2013 appellant then a 44-year-old transportation security officer, filed a
Form CA-2, notice of occupational disease, alleging that she developed low back pain and disc
damage due to repetitive lifting required in her job. She first became aware of her condition on
January 29, 2013 and realized that it was causally related to her employment on
February 14, 2013.
Appellant was treated by Dr. Jeffrey Rado, a Board-certified internist, who on
February 13, 2013 released her to work the next day with restrictions. Dr. Rado noted that she
would be reevaluated on February 19, 2013. In a February 19, 2013 report, Dr. Samil A.
Kakodkar, a Board-certified internist, treated appellant and released her to work on February 21,
2013 with restrictions. In an attending physician’s report dated February 19, 2013, he noted a
date of injury of January 29, 2013 and examination findings of L4-5 disc herniation and L5-S1
posterior disc bulge. Dr. Kakodkar diagnosed disc herniation and noted with a check mark “yes”
that appellant’s condition was caused or aggravated by work activity specifically noting that
twisting, bending and lifting aggravated her condition. He noted that she was disabled from
January 29, 2013 to the present.
On March 6, 2013 OWCP advised appellant of the type of evidence needed to establish
her claim. It particularly requested that she submit a physician’s reasoned opinion addressing the
relationship of her claimed condition and specific work factors.
In a March 29, 2013 statement, appellant indicated that her job duties included
continuous sitting, walking, standing, lifting, bending, pushing and pulling bags, bins,
wheelchairs and bin carts which contributed to her condition. She noted performing these duties
40 hours a week. Appellant submitted a duty status report from Dr. Rado dated March 13, 2013
who noted clinical findings of severe low back pain. Dr. Rado returned her to light duty. In an
April 2, 2013 report, he noted that appellant’s symptoms worsened after bending over and
patting down a traveler in January 2013 and she felt pain in the right lumbar area. Dr. Rado
noted symptoms of low back pain which was worse with walking and sitting for prolonged
periods. He diagnosed low back pain and opined that activity at appellant’s job incited the
current episode of back pain.
Dr. Rado noted that a March 18, 2013 magnetic resonance imaging (MRI) scan revealed
degenerative changes at L4-5 and L5-S1, mild-to-moderate foraminal stenosis at L4-5 and L5S1, central disc extrusion at left L4-5 and a broad-based disc protrusion at L5-S1. In an
attending physician’s report dated April 13, 2013, he noted a January 29, 2013 date of injury and
indicated that appellant’s back pain worsened by doing a pat down of a passenger. Dr. Rado
noted appellant’s history of back problems and diagnosed low back pain, degenerative joint
disease and lumbar disc herniation. He checked a box “yes” that appellant’s condition was
caused or aggravated by employment activity, specifically stating “straining + lifting luggage
increases her pain.” Dr. Rado noted that appellant was totally disabled from April 17 to 29, 2013
and could resume light-duty work on April 30, 2013. Appellant submitted a February 19, 2013
duty status report from Dr. Kakodkar which noted that she had L4-5 herniation and L5-S1
posterior disc bulge causing right neuroforaminal stenosis and could return to work with
restrictions.

2

In a May 15, 2013 decision, OWCP denied the claim on the grounds that the medical
evidence was insufficient to establish that appellant’s claimed conditions were causally related to
work events.
In an August 19, 2013 appeal form, appellant requested reconsideration. In a letter dated
August 19, 2013, she requested that OWCP reconsider the May 15, 2013 decision and indicated
that she was submitting additional medical evidence that established her claim. No additional
evidence was submitted prior to OWCP’s decision.
In a September 25, 2013 decision, OWCP denied appellant’s request for reconsideration
on the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.3
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) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4

3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
4

Solomon Polen, 51 ECAB 341 (2000).

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ANALYSIS -- ISSUE 1
It is not disputed that appellant’s work duties included repetitive lifting. It is also not
disputed that she has been diagnosed with L4-5 disc herniation, L5-S1 posterior disc bulge
causing right neuroforaminal stenosis and degenerative joint disease. However, appellant has not
submitted sufficient medical evidence to establish that any of these conditions are causally
related to specific employment factors or conditions.
In the April 2, 2013 report, Dr. Rado noted that appellant’s episode of back pain occurred
after bending over and patting down a traveler in January 2013. He diagnosed low back pain and
opined that activity at appellant’s job incited the current episode of back pain. Dr. Rado noted
that a March 18, 2013 magnetic resonance imaging (MRI) scan revealed degenerative changes at
L4-5 and L5-S1, mild-to-moderate foraminal stenosis at L4-5 and L5-S1, central disc extrusion
at left L4-5 and a broad-based disc protrusion at L5-S1. Although he supported causal
relationship, he did not provide medical rationale explaining the basis of his opinion regarding
causal relationship. Dr. Rado did not sufficiently explain how lifting and bending at work would
cause or aggravate the diagnosed degenerative changes at L4-5 and L5-S1, mild-to-moderate
foraminal stenosis at L4-5 and L5-S1, central disc extrusion at left L4-5 and a broad-based disc
protrusion at L5-S1 and why these conditions were not solely due to age-related degeneration.
Dr. Rado noted, in the attending physician’s report dated April 13, 2013, a date of injury
of January 29, 2013 and noted appellant’s back pain worsened after doing a pat down. He
diagnosed low back pain, degenerative joint disease and lumbar disc herniation. Dr. Rado noted
with a checkmark “yes” that appellant’s condition was caused or aggravated by an employment
activity, specifically stating “straining + lifting luggage increases her pain.” The Board has held
that an opinion on causal relationship which consists only of a physician checking “yes” to a
medical form report question on whether the claimant’s condition was related to the history
given is of little probative value. Without any explanation or rationale for the conclusion
reached, such report is insufficient to establish causal relationship.5 Similarly, in his report dated
February 13, 2013, Dr. Rado released appellant to work with restrictions. In the March 13, 2013
duty status report, he noted clinical findings of severe low back pain and diagnosed back pain.
Dr. Rado returned appellant to light duty. These reports are insufficient to meet appellant’s
burden of proof as she does not relate a history of the claimed work injury6 or offer any specific
opinion regarding whether work factors caused or contributed to a diagnosed medical condition.7
Neither the February 19, 2013 report from Dr. Kakodkar, who released appellant to work
on February 21, 2013 with restrictions, nor the duty status report dated February 19, 2013, which
noted that appellant had L4-5 disc herniation and L5-S1 posterior disc bulge causing right
neuroforaminal stenosis and could return to work with restrictions was sufficient to establish
causal relationship. Dr. Kakodkar did not specifically support that the January 29, 2013 work
5

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

6

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
7

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

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incident caused or contributed to appellant’s diagnosed medical condition. Similarly, in the
attending physician’s report dated February 19, 2013, he noted findings of L4-5 disc herniation
and L5-S1 posterior disc bulge, but noted only with a check mark “yes” that appellant’s
condition was caused or aggravated by an employment activity specifically twisting, bending,
lifting aggravated appellant’s condition. As noted above, the Board has held that when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale, that opinion is of diminished probative value and is insufficient
to establish a claim. Consequently these reports are of little probative value and insufficient to
establish appellant’s occupational illness claim.
On appeal, appellant disagreed with OWCP’s decision denying her claim for
compensation and noted that she had submitted sufficient evidence to establish her claim. As
noted above, the medical evidence does not establish that her diagnosed conditions were causally
related to her employment. Reports from appellant’s physicians failed to provide sufficient
medical rationale explaining the reasons why her L4-5 disc herniation and L5-S1 posterior disc
bulge causing right neuroforaminal stenosis was caused or aggravated by particular employment
duties. The need for such rationale is particularly important in view of appellant’s preexisting
degenerative disc disease.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,8 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”9
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.10

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim on the grounds that she failed to provide sufficient
medical evidence to establish that the diagnosed condition was causally related to her work
duties. Thereafter, it denied her reconsideration request, without a merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her request for reconsideration, she did not show that OWCP erroneously applied or
interpreted a specific point of law. Appellant did not identify a specific point of law or show that
it was erroneously applied or interpreted. She did not advance a new and relevant legal
argument. In her August 19, 2013 letter, appellant requested that OWCP reconsider the May 15,
2013 decision and indicated that she was submitting additional medical evidence that established
her claim. No additional evidence was submitted prior to OWCP’s decision. These assertions
do not show a legal error by OWCP or a new and relevant legal argument. The underlying issue
in this case is whether appellant’s diagnosed condition is causally related to her workplace
exposures. That is a medical issue which must be addressed by relevant new medical evidence.11
However, appellant did not submit any new and relevant medical evidence in support of her
claim. She indicated that a medical report was submitted but no additional medical evidence was
received.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment. The Board finds that OWCP
properly denied her request for reconsideration.

11

See Bobbie F. Cowart, 55 ECAB 746 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the September 25 and May 15, 2013 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 28, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Little Rock, AR, Employer
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___________________________________________ )
B.T., Appellant

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

Docket No. 16-0785
Issued: September 21, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 9, 2016 appellant, filed a timely appeal from an October 9, 2015 merit decision
and a November 5, 2015 nonmerit 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.3

1

Appellant requested oral argument. However, by letter dated April 4, 2016, he withdrew his oral argument
request.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that during the pendency of this appeal, OWCP issued a June 2, 2016 decision, which affirmed
as modified the October 9, 2015 decision. This decision, however, is null and void as the Board and OWCP may not
simultaneously have jurisdiction over the same issue. See Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor,
44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990). See
also 20 C.F.R. § 501.2(c)(3).

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a July 27, 2015
injury in the performance of duty; and (2) whether OWCP properly refused to reopen appellant’s
case for further review of the merits of his claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 28, 2015 appellant then a 49-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that on July 27, 2015 he started noticing pain in the right ankle
walking on different terrain while in the performance of duty. The employing establishment
checked the box marked “yes” in response to whether appellant was in the performance of duty
at the time of the incident. Appellant did not initially stop work.
In a July 28, 2015 treatment note, Dr. Troy O. Moore, a family medicine physician,
advised that appellant could return to work with restrictions to include: no squatting and/or
kneeling, sitting 50 percent of the time, walking, occasionally, up to three hours per day, no
walking on uneven terrain, no climbing stairs or ladders. He diagnosed ankle/foot pain and
effusion of the ankle and foot joint. Dr. Moore recommended regular duty on July 30, 2015. He
saw appellant on July 30, 2015 for a recheck and diagnosed right ankle pain with a history of
ankle swelling. Dr. Moore recommended continued ice and elevation. He completed a return to
work note on July 30, 2015.
An August 3, 2015 accident report from the employing establishment revealed that on
July 27, 2015 appellant felt a sharp pain in his right ankle while performing his route.
In an August 6, 2015 report, Dr. Moore noted that appellant presented for a recheck of his
right ankle due to a “self-reported workers’ compensation” claim. He noted that appellant’s
history included that appellant reported a sudden onset of right ankle pain and swelling while
walking his mail route. Dr. Moore indicated that there was no known injury, “however, he
reports walking on uneven ground and being startled by a dog, with no prior history reported.”
He examined appellant and diagnosed right ankle pain. Dr. Moore indicated that appellant could
return to regular duty. He saw appellant on August 13, 2015 and noted that appellant presented
with complaints of pain and limping, which was not evident on examination. Dr. Moore related
that the integumentary and neurological findings were negative. He diagnosed right ankle pain
and recommended rest, with ice and elevation. Dr. Moore recommended regular duty and
continued to treat appellant. In his August 25, 2015 report, he referred appellant for physical
therapy regarding his restless legs syndrome, “as these are not causally related to his workrelated injury.” Dr. Moore also recommended regular duty.
OWCP received physical therapy reports and an August 3, 2015 report from Marcus W.
Sims, an employing establishment health and resource management specialist, assigned to assist
appellant with his recovery.
By letters dated September 2, 2015, OWCP informed appellant and the employing
establishment of the type of evidence needed to support his claim and requested that he submit

2

such evidence within 30 days. In an accompanying questionnaire, it asked him to describe in
detail how the claimed injury occurred.
By decision dated October 9, 2015, OWCP denied appellant’s claim. It found that the
factual component of the third basic element, fact of injury had not been established.
On October 29, 2015 OWCP received appellant’s request for reconsideration.
In August 20 and 25, 2015 reports, Dr. Moore noted that appellant returned for a recheck
of the right ankle. He diagnosed right ankle pain. In October 15 and 20, 2015 reports,
Dr. Moore noted appellant’s history and indicated the primary diagnosis was right ankle and foot
pain.
In a September 23, 2015 report, Dr. Jesse Burks, a podiatrist, noted appellant’s history
and diagnosed Achilles insertional tendinitis, right, secondary to injury.
By decision dated November 5, 2015, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision. It noted that he did not answer the questions in the September 2, 2015 letter and did
not clarify whether he was filing a traumatic injury or occupational claim. OWCP explained that
without the requested narrative statement describing exactly the alleged traumatic incident, the
evidence was insufficient to warrant a merit review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA,4 and that an injury was sustained in the performance
of duty.5 These are the essential elements of each and every compensation claim, regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
4

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

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

John J. Carlone, 41 ECAB 354 (1989).

8

Id.

3

An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his subsequent course of
action. The employee has not met his burden of proof of establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.9
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.10 To establish a
causal relationship between the condition, as well as any attendant disability claimed, and the
employment event or incident, the employee must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting such a causal relationship.11
ANALYSIS -- ISSUE 1
Appellant has alleged that on July 27, 2015 he noticed pain in his right ankle while
walking on different terrain while in the performance of duty. OWCP denied the claim because
of the factual component of fact of injury had not been established. It found that appellant had
not submitted sufficient evidence describing how his injury occurred.
The Board finds that appellant has not established the factual component of his claim as
he failed to explain how his claimed injury occurred. In letters dated September 2, 2015, OWCP
requested that appellant submit clarifying information describing how his claimed injury
occurred. However, appellant did not respond. As he did not respond to the request for factual
information, the record lacks sufficient factual evidence to establish the details of how the
claimed injury occurred. As appellant has not established the factual aspect of his claim, the
medical evidence regarding causal relationship need not be addressed.12
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.

9

D.B., 58 ECAB 464, 466-67 (2007).

10

J.Z., 58 ECAB 529 (2007).

11

Michael E. Smith, 50 ECAB 313 (1999).

12

See V.F., 58 ECAB 321, 327 (2007).

4

LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,13 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”14
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.15
ANALYSIS -- ISSUE 2
Appellant disagreed with the October 9, 2015 decision and timely requested
reconsideration on October 29, 2015. The underlying issue on reconsideration is factual in
nature, whether he met his burden of proof to establish a traumatic injury in the performance of
duty on July 27, 2015.
In his reconsideration request, appellant did not provide any information about how the
claimed injury occurred. The Board also notes that, as the issue is factual in nature, the medical
evidence submitted from Drs. Moore and Burks is not relevant as the factual component of
appellant’s claim has not been established. The Board has held that the submission of evidence
which does not address the particular issue involved does not constitute a basis for reopening a
case.16
Appellant therefore did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or
constitute relevant and pertinent new evidence not previously considered. As he did not meet
any of the necessary regulatory requirements, he is not entitled to further merit review.

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.608(b).

16

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury in
the performance of duty. The Board further finds that OWCP properly refused to reopen his case
for further review of the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 5 and October 9, 2015 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 21, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, MARKET SQUARE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0272
Issued: April 25, 2017

Case Submitted on the Record

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

JURISDICTION
On November 16, 2016 appellant, through counsel, filed a timely appeal from a
September 7, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s medical benefits,
effective March 10, 2016, as she had no further residuals of her February 14, 2014 work injury;
1

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

5 U.S.C. § 8101 et seq.

(2) whether appellant has met her burden of proof to show that she required medical treatment
after March 10, 2016 due to her employment injury; and (3) whether appellant has established
that her claim should be expanded to include additional conditions resulting from the
February 14, 2014 work injury.
FACTUAL HISTORY
On February 14, 2014 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she sustained injuries to her neck, back, and left
knee after she slipped on ice and fell down stairs. She stopped work on February 14, 2014.
OWCP accepted the claim for neck sprain, sprains of the thoracic and lumbar spine, and sprains
of the left knee and leg.3 It paid compensation for total disability from April 2 until October 6,
2014, when appellant resumed full-time modified employment.
In a progress report dated June 4, 2015, Dr. William Beatie, an attending orthopedic
surgeon, discussed appellant’s history of a work injury on February 14, 2014 and noted that an
electromyogram (EMG) showed right radiculopathy at L5. He diagnosed cervical sprain/strain, a
C5-6 disc herniation, thoracic sprain/strain, lumbosacral strain/sprain with right L5
radiculopathy, an L4-5 disc herniation, left knee sprain/strain, and left knee patellofemoral
arthritis. Dr. Beatie found that appellant could continue to perform her modified employment.
He related, “It is my professional opinion, based on a reasonable degree of medical certainty that
the injuries sustained by [appellant] are causally related to the injury at work on
February 14, 2014.”
OWCP, on May 20, 2015, referred appellant to Dr. Willie E. Thompson, a Boardcertified orthopedic surgeon, for a second opinion examination. It requested that he address
whether she had residuals of her accepted conditions, the extent of any disability, and whether
she sustained additional conditions as a result of her work injury.
In a report dated June 19, 2015, Dr. Thompson reviewed the history of injury and
discussed appellant’s complaints of continued pain in her neck and back with periodic numbness
of the legs and arms. On examination he found a negative straight leg raise with no motor or
sensory deficits of the lumbar spine, no muscles spasms or tenderness of the cervical spine, full
strength of the upper extremity, and no loss of motion, effusion, or instability of the left knee.
Dr. Thompson noted that there were “no imaging studies available for review,” but noted that an
EMG showed findings “suggestive of a right L5 radiculopathy.” He diagnosed a sprain/strain of
the neck, back, and left knee. Dr. Thompson opined, “At this point in time there are no objective
residuals related to the injury of February 14, 2014. Examination of the cervical spine, lumbar
spine and left knee failed to reveal any evidence of objective pathology.” Dr. Thompson found
no evidence of disability and that appellant could resume her usual employment.
By letter dated July 20, 2015, OWCP requested that appellant’s treating physician,
Dr. Beatie, and Dr. Sofia Lam, a Board-certified anesthesiologist, review Dr. Thompson’s report
and provide any differing opinion regarding appellant’s injury-related condition and disability.
3

OWCP had previously accepted lumbosacral strain due to an October 5, 2004 injury, assigned File No.
xxxxxx349.

2

Dr. Beatie, on July 23, 2015, disagreed with Dr. Thompson’s opinion that appellant could
resume her usual employment. He related, “[Appellant] did not comment on her objective
findings of a disc herniation at C5-6 or the disc herniation at L4-5. In his impressions and
recommendations, these important [magnetic resonance imaging] (MRI) [scan] findings were not
discussed.”
In an August 18, 2015 report, Dr. Lam described her treatment of appellant for workrelated neck and back injuries. She diagnosed “cervical and lumbar/thoracic sprain and strain,
discogenic lumbar radiculopathy with the main focus in the right L4-5, S1 nerve root
distribution, lumbar facet syndrome and discogenic cervical radiculopathy with the main focus in
the right C5, C6 nerve root distribution.” Dr. Lam provided examination findings and discussed
her planned treatment of appellant by facet joint injection.
On September 9, 2015 OWCP advised appellant of its proposed termination of her wageloss compensation and medical benefits as the opinion of Dr. Thompson represented the weight
of the evidence and established that she had no further employment-related condition or
residuals.
Dr. Beatie, in a report dated October 1, 2015, noted that appellant had no pain in her
neck, arm, back, leg, or left knee before the February 14, 2014 employment injury. He related,
“The mechanism of injury is consistent with the cervical disc herniation with the radiculitis and
the lumbar disc herniation with the left L5 radiculopathy. The mechanism of injury is also
consistent with the left knee sprain and strain.” Dr. Beatie concluded that the diagnoses were
causally related to the February 14, 2014 employment injury.
On November 9, 2015 appellant submitted MRI scan studies of the cervical and lumbar
spine and left knee dated July 10, 2014 and the results of January 6, 2015 electrodiagnostic
testing to OWCP. The MRI scan of the cervical spine revealed a “[p]osterior annular tear and
subtle central disc herniation at C5-6 with minimal indentation upon the ventral subarachnoid
space.” The MRI scan study of the lumbar spine showed an L4-5 central disc herniation and
bulge with mild compression of the thecal sac. The MRI scan study of the left knee showed
patellofemoral arthritis and “marrow edema in the lateral femoral condyle which can be seen
with bone contusion.” The EMG and nerve conduction velocity study revealed findings
“suggestive of right L5 radiculopathy.”
By letter received November 9, 2015, appellant requested that OWCP expand acceptance
of her claim to include cervical and lumbar herniated discs with radiculopathy, noting that she
did not have an injury to her back and neck before the February 14, 2014 incident.
OWCP determined that a conflict arose between Dr. Thompson and Dr. Beatie regarding
appellant’s current condition and disability. It indicated that Dr. Beatie found additional
employment-related conditions, including cervical and lumbar disc herniations, and
patellofemoral arthritis. OWCP referred appellant to Dr. William H. Simon, a Board-certified
orthopedic surgeon, for an impartial medical examination. It requested that he address whether
she had residuals of her accepted employment injury and provide the relationship between any
diagnoses and the February 14, 2014 injury.

3

In a report dated December 9, 2015, Dr. Simon reviewed appellant’s history of injury and
her symptoms of neck pain, headaches, and low back pain. On examination, he found normal
range of motion of lumbar and cervical spine without tenderness. Dr. Simon further found
normal lower extremity range of motion with intact sensation. He reviewed the medical reports
of record and the results of diagnostic testing. Dr. Simon noted that OWCP had not accepted a
C5-6 cervical disc herniation, lumbar and cervical radiculopathy, an L4-5 disc herniation, and
patellofemoral arthritis due to the February 14, 2014 employment injury. He diagnosed cervical
degenerative disc disease and lumbar degenerative disc and joint disease by MRI scan study, and
left knee patellofemoral arthritis. Dr. Simon found no objective evidence of the accepted
conditions and noted that the only objective findings of disc abnormalities were the MRI scan
studies and the EMG finding of L5 radiculopathy, which were not accepted as work related. He
concurred with Dr. Thompson that appellant had “no objective residual of any of the accepted
injuries sustained on February 14, 2014, namely a strain and sprain of the cervical, thoracic, and
lumbar spines and a sprain and strain of the knee.” Dr. Simon advised that soft tissue injuries
resolved within weeks or months and opined that she did not require treatment for her work
injury after September 2014. He found no disability due to the work injury, but noted that
appellant had limitations due to preexisting disc disease of the cervical and lumbar spine.
OWCP, on January 25, 2015, notified appellant of its proposed termination of her wageloss compensation and medical benefits based on the opinion of Dr. Simon, the impartial medical
examiner.
In a February 4, 2016 progress report, Dr. Beatie related, “It is imperative that these
diagnoses [C5-6 and L4-5 disc herniations] be added as well as the radiculopathy at L4-5 and S1.
There is no reason to doubt these injuries did not occur at the time of [appellant’s] fall on
February 14, 2014. The mechanism of injury is consistent with these diagnoses.” Dr. Beatie
opined that appellant could continue working modified duty.
Counsel, by letter dated February 11, 2016, disagreed with the proposed termination and
requested claim expansion to include lumbar radiculopathy and herniated cervical and lumbar
discs.4 He maintained that Dr. Thompson had not reviewed the MRI scan studies or addressed
the positive EMG findings and thus his report was of diminished weight. Counsel argued that a
conflict did not exist regarding claim expansion at the time of OWCP’s referral of appellant to
Dr. Simon as Dr. Thompson had not addressed the issue. He further noted that Dr. Simon
merely noted that the left knee patellofemoral arthritis and lumbar and cervical herniations were
not accepted. Counsel questioned his diagnoses of preexisting degenerative disc disease given
appellant’s age and as it was not found on the MRI scans. He also asserted that Dr. Simon had
not provided rationale for his opinion or addressed whether preexisting conditions were
aggravated by the fall.
By decision dated March 10, 2016, OWCP terminated appellant’s wage-loss
compensation and authorization for medical benefits effective that date. It found that the opinion
4

On February 19, 2016 appellant acknowledged to OWCP that she had been involved in a minor motor vehicle
accident when her vehicle had been struck from behind on March 19, 2010. She was diagnosed at that time with
minor neck and back strain. Appellant did not lose time from work or have objective studies. She noted that she
had forgotten about the incident because it was “so minor.”

4

of Dr. Simon represented the weight of the evidence and established that she had no further
employment-related condition or residuals.
On March 21, 2016 counsel requested an oral hearing. In a duty status report dated
March 14, 2016, Dr. Gregory A. Nelson, an internist, diagnosed cervical and lumbar sprain and
listed work restriction. He checked a box marked “yes” indicating that the history provided by
appellant corresponded to that provided on the form, noting that she had fallen down stairs.
At the hearing, held on July 14, 2016, counsel reiterated that a conflict did not exist as
Dr. Thompson had not reviewed the imaging studies and thus had no basis for finding that
appellant had no objective evidence of a lumbar or cervical condition. He maintained that
Dr. Simon’s report constituted that of a second opinion examiner and that he did not address the
issue of claim expansion or provide rationale for his finding that she had a preexisting condition.
By decision dated September 7, 2016, an OWCP hearing representative affirmed the
March 10, 2016 decision. He found that a conflict existed regarding whether appellant’s
accepted diagnoses and whether her claim should be expanded. The hearing representative
found that Dr. Simon resolved the conflict by finding no objective evidence of a disc condition
on examination.
On appeal counsel contends that Dr. Thompson addressed only appellant’s accepted
conditions and thus his opinion did not create a conflict with Dr. Beatie regarding claim
expansion. He argues that Dr. Simon’s report constituted that of a second opinion examiner.
Counsel asserts that the physician concluded that the accepted sprains had resolved, but did not
address the issue of claim expansion, noting only that the additional conditions had not been
accepted. He also maintains that Dr. Simon failed to explain his diagnosis of degenerative disc
disease or why he found that it preexisted the work injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7
Further, the right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment,

5

Elaine Sneed, 56 ECAB 373 (2005).

6

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

7

Gewin C. Hawkins, 52 ECAB 242 (2001).

8

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

5

OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.11 In situations where there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.12
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained neck strain, thoracic and lumbar sprains, and left
knee and leg sprains due to a February 14, 2014 employment injury. It paid her compensation
for total disability from April 2 to October 6, 2014, when she returned to full-time limited-duty
work. As appellant was not receiving compensation for total disability at the time of OWCP’s
termination, it improperly characterized the decision as a termination of wage-loss
compensation.13 The issue is whether she had residuals from her work injury such that she
required further medical treatment.
OWCP properly determined that a conflict of medical opinion existed between
Dr. Beatie, an attending physician who found that appellant had continued residuals of her
cervical, thoracic, lumbar, and left knee sprains, and Dr. Thompson, a referral physician who
found that she had no objective findings of the accepted employment injuries. It referred her to
Dr. Simon for an impartial medical examination.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.14 The Board finds that the opinion of Dr. Simon, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
9

Id.

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

13

See O.L., Docket No. 12-1607 (issued January 17, 2013), n. 3; G.U., Docket No. 12-1725 (issued March 14,
2013); L.E., Docket No. 09-1855 (issued July 2, 2010).
14

See J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

6

and based on a proper factual and medical history. Dr. Simon accurately summarized the
relevant medical evidence, provided detailed findings on examination, and reached conclusions
about appellant’s condition which comported with his findings.15 In a report dated December 9,
2015, he reviewed the medical evidence of record, including the results of diagnostic studies. On
examination, Dr. Simon found no objective evidence of the accepted sprains due to the
February 14, 2014 employment injury. He provided rationale for his opinion by explaining that
appellant’s soft tissue injuries had resolved by September 2014 and that she required no further
treatment after that date. As Dr. Simon’s report is detailed, well rationalized and based on a
proper factual background, his opinion is entitled to the special weight accorded an impartial
medical examiner.16 OWCP thus met its proof to terminate appellant’s medical benefits for the
accepted conditions of cervical, thoracic, lumbar, and left knee sprains.
The remaining evidence submitted prior to OWCP’s termination is insufficient to support
that appellant had further residuals of her accepted work injury. On February 4, 2016 Dr. Beatie
advised that her claim should be expanded to include additional conditions. He did not,
however, find that appellant required additional treatment due to her accepted lumbar, thoracic,
cervical, and left knee sprain. Additionally, Dr. Beatie was on one side of the conflict resolved
by Dr. Simon. A medical report from a physician on one side of a conflict resolved by an
impartial medical examiner is generally insufficient to overcome the weight accorded the report
of an impartial medical examiner or create a new conflict.17
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s authorization for medical
benefits, appellant has the burden of proof to establish continuing employment-related residuals
after that date due to her accepted employment injury. Appellant must establish by the weight of
the reliable, probative, and substantial evidence that she had residuals of her employment injury
which continued after the termination of benefits.18
ANALYSIS -- ISSUE 2
Dr. Nelson, in a duty status report dated March 14, 2016, diagnosed a cervical and
lumbar sprain condition and listed work restrictions. He checked a box marked “yes” indicating
that the history provided by appellant corresponded to that provided on the form (i.e., that she
had fallen down the steps). The Board has held, however, that an opinion on causal relationship
which consists only of a physician checking a box marked “yes” to a medical form question on
whether the claimant’s condition was related to the history given is of little probative value.

15

See Manuel Gill, 52 ECAB 282 (2001).

16

See Katheryn E. Demarsh, 56 ECAB 677 (2005).

17

Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

18

See M.C., Docket No. 16-0724 (issued October 7, 2016); C.B., Docket No. 16-0571 (issued October 4, 2016).

7

Without any explanation or rationale for the conclusion reached, such report is insufficient to
establish causal relationship.19
Regarding OWCP’s termination of medical benefits, 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.
LEGAL PRECEDENT -- ISSUE 3
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.20 To establish causal relationship between the
condition, as well as any attendant disability claimed and the employment event or incident, the
employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.21 The opinion of the physician must
be based on a complete factual and medical background of the claimant,22 must be one of
reasonable medical certainty23 explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.24
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.26 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.27
25

ANALYSIS -- ISSUE 3
The Board finds that the case is not in posture for decision regarding whether appellant
sustained additional conditions due to her February 14, 2014 employment injury. On June 4,
2015 Dr. Beatie diagnosed, in addition to the accepted sprains, a cervical disc herniation at C5-6,
an L4-5 disc herniation, right L5 radiculopathy, and patellofemoral arthritis of the left knee. He
19

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box marked “yes” in a form report, without
additional explanation or rationale, is insufficient to establish causal relationship).
20

See C.V., Docket No. 14-1940 (issued May 26, 2015); V.B., Docket No. 12-0599 (issued October 2, 2012).

21

See P.A., Docket No. 09-0319 (issued November 23, 2009); Jennifer Atkerson, 55 ECAB 317 (2004).

22

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

23

John W. Montoya, 54 ECAB 306 (2003).

24

Judy C. Rogers, 54 ECAB 693 (2003).

25

Vanessa Young, 55 ECAB 575 (2004).

26

Richard E. Simpson, 55 ECAB 490 (2004).

27

Melvin James, 55 ECAB 406 (2004).

8

attributed the diagnosed conditions to the work injury on February 14, 2014. In a report dated
October 1, 2015, Dr. Beatie advised that the cervical and lumbar disc herniations were consistent
with the mechanism of injury.
OWCP referred appellant to Dr. Thompson for a second opinion examination. It
requested that the physician address whether she had any additional conditions due to her
February 14, 2014 employment injury. On June 19, 2015 Dr. Thompson indicated that he had no
imaging studies to review, but an EMG showed findings consistent with radiculopathy at L5 on
the right. He found no objective findings of cervical, lumbar, or knee pathology, but did not
review the imaging studies or specifically address whether appellant’s claim should be expanded
to include additional conditions.
OWCP referred appellant to Dr. Simon after finding a conflict existed regarding whether
she had residuals of her accepted employment injury. It requested that he explain the
relationship between any diagnosed conditions and the February 14, 2014 work injury.
As Dr. Thompson had not addressed the issue of claim expansion, there existed no
conflict in opinion between appellant’s attending physician, Dr. Beatie, and OWCP’s referral
physician, Dr. Thompson, regarding whether she sustained herniated cervical and lumbar discs
and left knee patellofemoral arthritis due to her February 14, 2014 employment injury.
Dr. Simon’s opinion, consequently, on the issue of claim expansion was that of an OWCP
referral physician rather than an impartial medical examiner.
In his December 9, 2015 report, Dr. Simon noted that OWCP had not accepted disc
herniations at C5-6 and L4-5, cervical and lumbar radiculopathy, or patellofemoral arthritis as
work related. He diagnosed cervical and lumbar degenerative disc disease by MRI scan and
patellofemoral arthritis of the left knee. Dr. Simon indicated that the MRI scan studies showed
abnormalities and the EMG study showed L5 radiculopathy, but again noted that these
conditions were not accepted as work related. He found that appellant had limitations due to
preexisting cervical and lumbar disc disease. Dr. Simon, however, did not specifically address
whether she had sustained herniations, radiculopathy, patellofemoral arthritis, or any aggravation
of a preexisting condition due to her February 14, 2014 employment injury.
As noted, once OWCP undertakes to develop the medical evidence further, it has the
responsibility to do in a manner that will resolve the relevant issues in the case.28 Accordingly,
the Board finds that the case must be remanded to OWCP for further development. On remand,
OWCP should request that Dr. Simon provide a supplemental opinion clarifying whether
appellant sustained any additional conditions caused or aggravated by the February 14, 2014
employment injury. Following this and any other development deemed necessary, OWCP shall
issue an appropriate decision.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s medical benefits, effective
March 10, 2016, as she had no further residuals of her February 14, 2014 work injury. The
28

See V.B., supra note 20; Id.

9

Board further finds that she had not established that she had residuals of her accepted
employment injury after February 14, 2014. The Board further finds that the case is not in
posture for decision regarding whether appellant’s claim should be expanded to include
additional conditions resulting from the February 14, 2014 work injury.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: April 25, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


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

)
)
)
)
)
)
)
)
)

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

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

Case Submitted on the Record

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

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

1

5 U.S.C. § 8101 et seq.

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

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

2

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

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

3

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

4

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

Supra note 2.

5

Supra note 1.

6

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

7

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

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

5

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

Lillian Cutler, 28 ECAB 125 (1976).

10

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

11

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

12

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

13

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

14

Id.

15

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

6

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

See supra note 9.

17

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

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

19

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

20

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

21

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

7

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

22

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

23

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

24

See id.

25

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

26

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

8

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9