United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTATION, Flowood, MS, Employer
__________________________________________

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

Docket No. 07-1123
Issued: November 6, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs hearing representative’s decision dated December 14, 2006 which
affirmed the denial of his claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he had any
disability from September 26, 2004 to March 2, 2005 causally related to a July 19, 2004
employment injury.

FACTUAL HISTORY
On August 9, 2004 appellant, then a 57-year-old security screener filed a traumatic injury
claim (Form CA-1), alleging that on July 19, 2004 he was screening luggage and lifting bags
onto an airline belt and injured his right wrist and hand. Appellant did not stop work.1
Appellant came under the treatment of Dr. R. Tim Morris, Board-certified in
occupational medicine, who treated him from July 16 to September 20, 2004 for bilateral wrist
tendinitis. Dr. Morris noted complaints of decreased strength of the right arm and diagnosed
bilateral arm tendinitis. On September 20, 2004 he advised that appellant was off work from
September 18 to 20, 2004 and placed on full-time modified duty from September 21 to 27, 2004
with no lifting greater than one pound, limited use of both hands as tolerated and use of a wrist
splint. Nerve conduction studies dated September 14, 2004 revealed “very mild sensory
polyneuropathy, mildly reduced sensory amplitudes in bilaterally upper extremities, normal
motor responses, no electrophysiologic evidence of median and ulnar neuropathies on either side
or right brachial plexopathy and no evidence of right cervical radiculopathy or motor axon loss
by needle EMG [electromyogram] of the right upper extremity.”
The Office denied appellant’s claim on November 12, 2004. He requested an oral
hearing which was held on October 27, 2005. Appellant submitted a report from Dr. Michael G.
Dulske, a Board-certified orthopedic surgeon, dated September 27, 2004, who noted a history of
injury and diagnosed right cubital tunnel syndrome. Findings on physical examination included
a full range of motion of the wrists for flexion, extension, supination and pronation, negative
ulnar grind test, positive Tinel’s sign at the cubital tunnel and slightly diminished grip strength
and abduction strength. Dr. Dulske noted that x-rays revealed no significant acute abnormality.
On September 27, 2004 he advised that appellant could return to work full-time modified duty
with restrictions of no repetitive activity or lifting greater than one pound. In a report dated
October 4, 2004, Dr. Dulske noted a history of injury and diagnosed right cubital tunnel
syndrome. He noted with a checkmark “yes” that appellant’s condition was caused or
aggravated by an employment activity. Dr. Dulske returned appellant to full-time modified duty
with no repetitive activity and no lifting over one pound. Appellant also submitted a report from
Dr. Morris dated March 2, 2005, who returned him to regular duty without restriction.
In a decision dated December 5, 2005, the hearing representative set aside the
November 12, 2004 decision and accepted appellant’s claim for right cubital tunnel syndrome
and bilateral tendinitis of the wrists. He advised appellant to submit a claim for compensation
(Form CA-7) to establish any resulting disability from work causally related to his employment
injury.
The employing establishment approved appellant’s request for limited duty and advised
that he could continue to work 32 hours per week with restrictions on lifting no more than one
pound. It noted that appellant requested a change in work schedule to part time, 64 hours
biweekly, effective August 22, 2004. In a letter dated April 26, 2005, the employing
1

Appellant filed a separate claim for a back injury which occurred on May 13, 2006, File No. 06-216548. The
Office accepted the claim for a lumbar sprain. This claim is not before the Board at this time.

2

establishment advised that appellant’s work schedule was changed effective August 22, 2004 to
part time at his request. Appellant noted that he volunteered to convert from a part-time screener
position to a full-time screener position. In a Form 50 dated June 15, 2005, he requested a
change in work schedule to full-time effective June 26, 2005.
On January 17, 2006 appellant filed a CA-7, claim for compensation for intermittent
disability for the period July 20, 2004 to March 5, 2005. He requested four hours of leave
without pay for the period July 20, 2004 to March 2, 2005.2 Appellant noted that, during this
period, he worked part time four hours per day and was partially disabled for four hours per day
due to his work-related injury. He indicated on a time analysis form that the employing
establishment reduced his work hours due to his traumatic injury.
In a letter dated May 5, 2006, the Office requested that appellant submit medical
evidence establishing his disability for the claimed period.
In an August 16, 2004 report, Dr. Morris noted appellant’s complaints of decreased grip
strength, numbness and poor control of his right arm. Dr. Morris diagnosed bilateral arm
symptoms, possible tendinitis and advised that appellant was off work August 14 to 20, 2004
with a tentative return to regular-duty scheduled on August 21, 2004. In a work status report
dated August 24, 2004, he noted that appellant could work eight hours per day subject to
restrictions of no driving a vehicle, no grasping or manipulation and lifting limited to five
pounds. In reports dated March 1 to May 3, 2006, Dr. Dulske treated appellant for persistent
pain in the ulnar aspect of the wrist with difficulty grasping objects. He diagnosed right wrist
probable triangular fibrocartilage complex tear (TFCC) with cubital tunnel syndrome. In an
operative report dated May 23, 2006, he performed a right wrist arthroscopy, debridement of the
TFCC tear and diagnosed right wrist TFCC tear and right cubital tunnel syndrome.3
By decision dated June 14, 2006, the Office denied appellant’s claim for compensation
for partial disability, four hours per day, for the period September 26, 2004 to March 2, 2005.4 It
found that the medical evidence was not sufficient to establish that appellant’s partial disability
was due to his accepted work injury. The Office noted that the evidence did not establish the
medical necessity for appellant to work only four hours per day. Rather, appellant’s treating
physician returned him to work full time with driving and lifting restrictions and that appellant
requested part-time work as of August 24, 2004.
Appellant submitted statements dated November 30, 2004 and June 27, 2006. He
requested part-time work on August 24, 2004 because of his medical condition and returned to a

2

Documentation submitted with the January 17, 2006 CA-7 does not indicate that appellant had wage loss from
March 3 to 5, 2005.
3

The Office authorized this surgery on June 14, 2006.

4

The record reflects that the Office has not issued a final decision on appellant’s request for compensation for the
period July 20 to September 25, 2004. Therefore, the Board does not have jurisdiction over the matter. See 20
C.F.R. § 501.2(c).

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full-time position on March 5, 2005 due to financial difficulties. On June 19, 2006 appellant
requested an oral hearing which was held on October 6, 2006.
A March 29, 2006 magnetic resonance imaging (MRI) scan of the right wrist revealed
bone marrow edema along the radial margin of the distal ulnar and a defect within the central
portion of the triangle fibrocartilage which represent a focal tear. An August 1, 2006 MRI scan
of the lumbar spine revealed minimal degenerative changes demonstrated at L5-S1 level with a
small annular ligament tear. Appellant submitted reports dated September 11 and October 25,
2006, from Dr. D.K. Donohoe, a Board-certified orthopedic surgeon, who saw him for
degenerative disc disease at L5-S1. Reports from Dr. Ronald B. Williams, a Board-certified
anesthesiologist, dated October 25 and November 8, 2006, noted a history of injury and
diagnosed lumbar facet arthropathy and S1 joint arthropathy.
In a decision dated December 14, 2006, the hearing representative affirmed the
June 14, 2006 decision.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.5 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.6 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.7
ANALYSIS
The Office accepted appellant’s claim for bilateral wrist tendinitis and right cubital tunnel
syndrome. The Board finds that the medical evidence submitted in support of his wage-loss
compensation claim for partial disability, four hours per day, for the period September 26, 2004
to March 2, 2005, is insufficient to establish that appellant’s disability was caused by the
accepted employment injury.
On August 24, 2004 Dr. Morris noted that appellant could work eight hours per day with
no driving a vehicle or grasping and manipulation and lifting restricted to five pounds. On
September 20, 2004 he advised that appellant was placed on full-time modified duty from
September 21 to 27, 2004 with no lifting greater than one pound, limited use of both hands as
tolerated and use of a splint. Dr. Morris noted that appellant was experiencing symptoms of
bilateral tendinitis. However, he did not support that he was restricted to part-time work for four
hours a day from September 26, 2004 to March 2, 2005 due to the July 19, 2004 employment
injury. Rather, he advised that appellant could return to work full time subject to restrictions.

5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

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

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The medical evidence from Dr. Morris does not support appellant’s claim of partial disability.
Therefore, these reports are insufficient to meet appellant’s burden of proof.8
In reports dated September 27 to October 4, 2004, Dr. Dulske noted that appellant
experienced symptoms of right wrist and hand pain. He diagnosed right cubital tunnel syndrome
and possible triangular fibrocartilage complex tear. However, Dr. Dulske did not address
whether appellant had any employment-related disability from September 26, 2004 to March 2,
2005 due to the July 19, 2004 employment injury.9 He advised that appellant could return to
work full time subject to restrictions on no repetitive activity or lifting greater than one pound.
This medical evidence does not support appellant’s claim of partial disability.
The record indicates that on August 24, 2004 appellant requested a part-time limited duty
position for 32 hours per week. He requested a change in work schedule to part time effective
August 22, 2004, although appellant’s treating physician found that he could return to work fulltime subject to restrictions. The medical evidence of record fails to establish that it was the
residuals of appellant’s employment injury which prevented him from working full time for the
period September 26, 2004 to March 2, 2005.
The remainder of the medical evidence, including reports from Dr. Dulske, Dr. Donohoe
and Dr. Williams failed to provide an opinion on the causal relationship between the claimed
period of partial disability and the accepted employment injury. Consequently, this medical
evidence does not establish partial disability due to appellant’s employment injury of
July 19, 2004.
Furthermore, the evidence does not establish that the employing establishment removed
appellant’s full-time light-duty position or that his full-time light-duty requirements changed.
On August 24, 2004 appellant voluntarily requested a change to a part-time limited-duty position
subject to restrictions which became effective August 22, 2004. The record supports that
appellant voluntarily changed his full-time light-duty position with the employing establishment
to a part-time light-duty position although full-time light duty remained available to him.
CONCLUSION
The Board finds that appellant has failed to establish that his condition during the claimed
period of disability is causally related to the accepted employment injury of July 19, 2004.

8

The evidence also does not show that there was any wage loss for the period claimed that was incidental to
treatment for an accepted injury. See 5 U.S.C. § 8103(a); Daniel Hollars, 51ECAB 355 (2000).
9

See Jimmie H. Duckett, supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 14 and June 14, 2006 are affirmed.
Issued: November 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bath, NY , Employer
__________________________________________

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

Docket No. 10-599
Issued: October 12, 2010

Case Submitted on the Record

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

JURISDICTION
On January 5, 2010 appellant filed a timely appeal of a September 8, 2009 Office of
Workers’ Compensation Programs’ merit decision denying her claim for an employment injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained in
an injury in the performance of duty on October 4, 2008, as alleged.
FACTUAL HISTORY
On October 17, 2008 appellant, then a 63-year-old nursing assistant, filed a traumatic
injury claim alleging on October 4, 2008 that he injured his lower back and left leg while lifting
a patient from the floor. He and a coworker were lifting a patient and appellant was kneeling on
the bed and lifted the patient under the left arm. Appellant’s supervisor stated that investigation
of the incident did not support appellant’s statement as he was not assigned to this resident.

Appellant continued to work four hours of overtime and did not complain of pain. The Office
requested additional factual and medical evidence by letter dated October 21, 2009. It allowed
30 days for a response.
On October 24, 2008 the employing establishment responded and stated that the witness
contradicted appellant’s description of events on October 4, 2008, but that appellant called in
sick on October 5, 2008 and sought medical treatment. In a statement dated October 22, 2008,
Sherri Ballam, a nursing assistant, stated that a patient crawled out of his bed on October 4, 2008
and was standing by the edge of his bed. She was helping the patient to return to his bed and
stated, “[Appellant] assisted me by grabbing the back of the resident’s pajamas and guiding him
to the center of the bed. She was on the opposite side of the bed from the resident and had to just
reach over to gently guide the resident as I lowered him to a sitting position on the bed.”
Ms. Ballam stated that appellant did not have to lift, pull or exercise any physical exertion during
this incident and that he did not mention any pain during or after the procedure.
Dr. Alipio P. Encarnacion, a Board-certified internist, examined appellant on October 6
and 8, 2008 and noted that appellant reported pain in his left buttock and down his left leg for
three days. Appellant had lifted a patient and developed left leg pains. Dr. Encarnacion stated
that appellant was moaning and groaning on ambulation. He noted that, after appellant was
prescribed pain medication, he stopped making noises and was able to put on his socks with no
difficulty. Dr. Encarnacion diagnosed left leg pains probably secondary to sciatica or muscle
strains and prescribed hydrocone as well as no work until October 13, 2008. On October 16,
2008 he advised that appellant should not work for an additional week. On October 23, 2008
Dr. Encarnacion noted that appellant was using a wheelchair due to leg pain, but could stand and
walk around the wheelchair with no limping or difficulty. He noted that appellant reported low
back pain with inconsistent limping on ambulation. Dr. Encarnacion stated, “Patient was
informed that I am rather confused with his physical findings….”
Donna W. Wathews, a nurse manager, completed a statement on October 6, 2008 and
noted that appellant came into work on that date to complete a computer course. She stated that
she could see that appellant was in pain when he moved. Appellant did not state how he was
injured or whether it was work related.
Appellant stated that he did not immediately feel pain on October 4, 2008, but later in the
morning reported to the charge nurse that he was experiencing pain. In a statement dated
October 12, 2008, he described the employment incident of October 4, 2008 noting that he
helped Ms. Ballam lift a patient from the floor. Appellant stated, “I put my left leg on the bed
and my right leg is on the floor. Ms. Shreei got his right arm to lift him up on to the bed. I got
his left arm to lift him up on to the bed. We had to stop and turn our bodies in order to get him in
to bed…. I said, ‘Outch’ as my leg twisted in the bed.” (sic) He stated that he reported to Matt
Messecar and Janie Harrington that he was not feeling well. Appellant denied working overtime
and stated that his shift was 12 hours. He stated that after he went home he took pain medication
for two days before seeking treatment on October 6, 2008.
In a decision dated November 21, 2008, the Office denied appellant’s claim on the
grounds that an injury within the meaning of the Federal Employees’ Compensation Act was not
demonstrated and that the factual evidence was insufficient to establish that an incident occurred

2

on the date, time and in the manner alleged. The Office explained that the inconsistencies in the
factual presentation cast serious doubt as to the validity of the occurrence of the incident.
Appellant requested reconsideration on June 4, 2008 and submitted a narrative statement
dated June 1, 2009. He repeated his previous statement of October 12, 2008 noting that he had a
little discomfort from the twist, “but I am a Marine and we do not let a little ache and pain get to
us and keep us from working.” In a statement dated August 6, 2009, appellant disputed the
employing establishment’s statement that he was not assigned to the same area as Ms. Ballam.
He also accused Ms. Ballam of lying and stated that she was a large person who could not have
aided the patient alone. Appellant stated that Ms. Ballam told him not to place his knee on the
bed, and that they should use a lift, but the room was too small.
In a report dated October 16, 2008, Dr. Encarnacion, noted appellant’s history of injury
on October 4, 2008 as described by appellant on October 12, 2008, but stated that appellant felt
strain in his back during the lift. He diagnosed acute lumbar strain with left lower extremity pain
and paresthesias. Dr. Encarnacion continued to support appellant’s disability for work on
November 25, 2008.
Dr. Karen E. Mead, a Board-certified internist, on October 30, 2008 noted appellant’s
history of injury as helping a nurse lift a patent. She reported that appellant “apparently knelt on
the bed, lifting and twisted simultaneously experiencing severe back pain radiating down the left
leg.” Dr. Mead diagnosed acute sciatica and noted that the usual duration of an exacerbation of
sciatica is up to 90 days. A computerized tomography (CT) scan dated October 30, 2008 found
rheumatoid arthritis, multilevel disc bulges, severe discogenic disease without spondylosis.
Dr. Mead examined appellant on November 6, 2008 and again diagnosed acute sciatica. She
found that appellant’s left ankle jerk was diminished, that appellant had tenderness over the left
sciatic notch and that straight leg raising was equivocal. Dr. Mead reviewed appellant’s
diagnostic testing which demonstrated L5-S1 diffuse disc bulge on the left and significant facet
disease on November 24, 2008.
By decision dated September 8, 2009, the Office reviewed the merits of appellant’s claim
and declined to modify that the November 21, 2008 decision denied modification.
LEGAL PRECEDENT
The Office defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”1 In order to
determine whether an employee actually sustained an injury in the performance of duty, the
Office begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment

1

20 C.F.R. § 10.5(ee).

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incident which is alleged to have occurred.2 The second component is whether the employment
incident caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. 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. An 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. However, 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.3
ANALYSIS
The Office found that appellant had not submitted sufficient factual evidence to establish
that his alleged employment incident on October 4, 2008 occurred as alleged. Appellant
submitted several factual statements asserting that he experienced either left leg or back pain
lifting a patient with his coworker, Ms. Ballam. However, Ms. Ballam’s description of the
events of October 4, 2008 did not correlate with appellant’s. She stated that appellant helped her
to ease a standing patient on to his bed by guiding the patient with his pajama bottoms at the
waist. Appellant alleged that he helped Ms. Ballam to lift a patient who had fallen to the floor by
placing his left knee onto the patient’s bed and lifting the patient by his left arm while
Ms. Ballam lifted the patient by his right arm. Appellant stated that he had to twist his body and
experienced a tinge of pain verbalizing “outch.” (sic) Ms. Ballam stated that appellant did not
mention any pain during or after the procedure and did not have to lift, pull or exercise any
physical exertion during this incident.
Appellant sought medical treatment two days after the October 4, 2008 employment
incident and variously described experiencing pain in either his left leg or in his back to his
physicians. The nature of the pain described by appellant also varied among physicians as he
reported slight pain or extreme pain in his back when describing the October 4, 2008
employment incident.
The Board finds that appellant has not submitted the necessary consistent factual
evidence in describing his employment incident. Due to the varying descriptions offered by
appellant and the disagreement in events between appellant and the eyewitness, the Board finds

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

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that there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim.
CONCLUSION
The Board finds that appellant has not submitted the necessary factual evidence to
establish that the employment incident occurred in the manner alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 8, 2009 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, BAY SHORE POST
OFFICE, Bay Shore, NY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1072
Issued: November 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 16, 2019 appellant, through counsel, filed a timely appeal from a March 7, 2019
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.3

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.

3
The Board notes that, following the March 7, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective September 14, 2018, under 20 C.F.R. § 10.500(a) based on his earnings
had he accepted a temporary, limited-duty assignment.
FACTUAL HISTORY
On June 21, 2017 appellant, then a 45-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 20, 2017 he injured his neck and shoulder while in the
performance of duty.4 He stopped work on June 21, 2017. OWCP accepted appellant’s claim for
right shoulder rotator cuff strain and right shoulder subluxation. Appellant received continuation
of pay (COP) from June 21 through August 4, 2017 and was paid wage-loss compensation on the
supplemental rolls beginning August 5, 2017.
On January 25, 2018 appellant underwent authorized right shoulder arthroscopic surgery.
Appellant continued to receive medical treatment. In an April 18, 2018 narrative report,
Dr. Jonathan Ticker, a Board-certified orthopedic surgeon, recounted appellant’s complaints of
right shoulder pain after a case fell on his arms. He reviewed appellant’s history and noted that he
underwent right shoulder surgery on January 25, 2018. Upon examination of appellant’s right
shoulder, Dr. Ticker observed tenderness in his anterior shoulder upon palpation. Range of motion
testing was completed and Dr. Ticker reported that impingement testing was positive and
neurological testing showed no sensory deficits. He diagnosed partial tear of the right
subscapularis tendon and right biceps tendinitis. Dr. Ticker related that appellant was “not ready
at all for the demands of his job, nor any [light-duty] option.”
On May 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. David Benatar, a Board-certified orthopedic surgeon, for a
second opinion examination. In a June 1, 2018 report, Dr. Benatar reviewed appellant’s history,
medical records, including the SOAF. He recounted appellant’s current complaints of pain,
stiffness, and weakness of the right shoulder. Upon examination of appellant’s right shoulder,
Dr. Benatar observed tenderness anteriorly along the biceps and posteriorly and minimally along
the acromioclavicular (AC) joint. Impingement testing was positive. Dr. Benatar diagnosed status
post right shoulder arthroscopy with subscapularis repair.
Dr. Benatar reported that appellant’s objective findings were consistent with his subjective
complaints. He explained that limited range of motion and complaints of pain and weakness were
consistent with appellant’s prior surgical procedure. Dr. Benatar opined that appellant’s accepted
condition had not resolved and still required medical treatment. He reported that appellant could
not return to his date-of-injury job, but was capable of working in a full-time, limited-duty
capacity. Dr. Benatar completed a work capacity evaluation form (OWCP-5c), which indicated
that appellant could work full time with limitations of lifting or carrying up to 10 pounds for one
to two hours, pushing/pulling up to 20 pounds for two to three hours, reaching and reaching above
the shoulder up to three hours with the left shoulder and no reaching above the shoulder with the
right arm, and no climbing ladders.

4

Appellant alleged that the top shelf and case fell, causing discomfort to his neck and right shoulder.

2

In a May 30, 2018 report, Dr. Ticker recounted appellant’s complaints of worsening right
shoulder pain. Upon examination of appellant’s right shoulder, he observed tenderness at the
anterior shoulder upon palpation and positive impingement testing. Neurological examination
showed no sensory deficits. Dr. Ticker reported that appellant was not ready for all the demands
of his job nor any light-duty option. He recommended appellant continue with physical therapy.
Dr. Ticker diagnosed partial tear of the right subscapularis tendon and biceps tendinitis on the
right.
On July 17, 2018 the employing establishment offered appellant a part-time, modified
position, effective July 21, 2018, as a city carrier. Appellant’s duties included casing mail up to
10 pounds for three hours. The physical requirements of the job were pushing/pulling up to 20
pounds for three hours, lifting up to 10 pounds for three hours, and no reaching above the shoulder
with his right arm. Appellant’s hours were 8:00 a.m. to 11:00 a.m. and his salary was $62,499.00.
The position was based upon Dr. Benatar’s June 1, 2018 restrictions of lifting/carrying up to 10
pounds for one to two hours, pulling/pushing up to 20 pounds for one to three hours, reaching for
one to three hours, and no reaching above the shoulder with the right arm. The employing
establishment related that the job offer was available indefinitely while the restrictions were
temporary in nature. It further noted that, since his physician had authorized him to work eight
hours, all efforts would be made to increase the hours as other work became available.
On July 20, 2018 appellant refused to accept the July 17, 2018 modified job offer.
On July 24, 2018 the employing establishment informed OWCP that the light-duty job
offer remained available and that appellant had not returned to work. It further noted that it was
unable to offer full-time (eight hours) work within appellant’s restrictions, and that the job offer
would remain available indefinitely.
On July 26, 2018 the employing establishment provided OWCP with pay rate information.
It indicated that the current weekly pay rate, as of July 26, 2018, for appellant’s date-of-injury job
was $1,201.90 and that the weekly pay rate when appellant’s disability began, as of June 20, 2017,
was $1,151.13.
In a notice dated August 1, 2018, OWCP proposed to reduce appellant’s compensation
based on his refusal of the July 17, 2018 light-duty assignment. It advised him that it had reviewed
the work restrictions provided by Dr. Benatar and determined that the position offered him was
within his restrictions.5 OWCP informed appellant of the provisions of 20 C.F.R. § 10.500(a) and
advised him that any claimant who declined a temporary light-duty assignment deemed
appropriate by OWCP was not entitled to compensation for total wage loss. It calculated that
appellant’s compensation should be adjusted to $2,141.10 every four weeks using the formula set
forth in Albert Shadrick.6 Appellant was afforded 30 days to accept the assignment and report to
duty or provide a written explanation of his reasons for not accepting the job assignment.
OWCP received additional medical evidence. In an August 22, 2018 work status note,
Dr. John Muratori, Board-certified in family medicine, indicated that he had examined appellant
5

OWCP also noted that appellant’s treating physician, Dr. Ticker had not explained why he remained totally
disabled from work despite surgical intervention and conservative treatment.
6

5 ECAB 376 (1953); see 20 C.F.R. § 10.403.

3

on July 23, 2018 for his right shoulder injury and that appellant was totally disabled due to swelling
and pain.
On September 10, 2018 the employing establishment verified that the light-duty job offer
remained available.
By decision dated September 14, 2018, OWCP reduced appellant’s compensation,
effective September 14, 2018, because he failed to accept the July 17, 2018 temporary light-duty
assignment in accordance with 20 C.F.R. § 10.500(a). It noted that appellant had not accepted the
modified job offer, which was within the restrictions provided by Dr. Benatar in his June 1, 2018
report. OWCP further determined that appellant had not submitted sufficient medical evidence to
support his refusal of the light-duty job offer. It also provided a final computation memorandum,
which demonstrated that appellant’s compensation should be adjusted to $2,141.10 every four
weeks using the Shadrick formula. OWCP noted that the base weekly pay rate for appellant’s
date-of-injury position was $1,151.13, effective June 20, 2017. It then indicated that appellant’s
current pay rate for his date-of-injury position, effective July 26, 2018, was $1,201.90. OWCP
indicated that appellant was currently capable of earning $450.75 a week. It then determined that
appellant had 38 percent loss of wage-earning capacity, resulting in a new net compensation rate
of $2,141.10 every four weeks.
On October 12, 2018 appellant, through counsel, requested a review of the written record
by an OWCP hearing representative.
Appellant continued to file claims for wage-loss compensation (Form CA-7) due to total
disability from work. OWCP paid wage-loss compensation based on his loss of wage-earning
capacity and placed appellant on the periodic rolls, effective March 3, 2019.
By decision dated March 7, 2019, an OWCP hearing representative affirmed the
September 14, 2018 decision.
LEGAL PRECEDENT
OWCP regulations at section 10.500(a) provide in relevant part:
“(a) Benefits are available only while the effects of a work-related condition
continue.
“Compensation for wage loss due to disability is available only for any periods
during which an employee’s work-related medical condition prevents [him or her]
from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for any wage loss claimed on a [Form]
CA-7 to the extent that evidence contemporaneous with the period claimed on a
[Form] CA-7 establishes that an employee had medical work restrictions in place;
that light duty within those work restrictions was available; and that the employee
was previously notified in writing that such duty was available. Similarly, an
employee receiving continuing periodic payments for disability was not prevented
from earning the wages earned before the work-related injury if the evidence
establishes that the employing [establishment] had offered, in accordance with

4

OWCP procedures, a temporary light-duty assignment within the employee’s work
restrictions.”7
OWCP procedures advise, “If there would have been wage loss if the claimant had accepted
the light-duty assignment, the claimant remains entitled to compensation benefits based on the
temporary actual earnings WEC [wage-earning capacity] calculation (just as if he/she had accepted
the light-duty assignment).”8
OWCP procedures further advise that, if a part-time, temporary light-duty assignment is
offered to a claimant who is not on the periodic rolls, the claims examiner should not pay for the
hours when light duty within the claimant’s work restrictions was available if there is evidence
that the claimant was previously performing light duty or was notified in writing that such light
duty was available.9
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 14, 2018, pursuant to 20 C.F.R. § 10.500(a) because he declined a temporary
light-duty assignment that was within his identified work restrictions.
On July 17, 2018 the employing establishment offered appellant a light-duty assignment
as a part-time modified city carrier, working 15 hours a week. Appellant’s duties included casing
mail weighing up to 10 pounds for up to three hours. The physical requirements were
pulling/pushing up to 20 pounds for three hours, lifting up to 10 pounds for three hours, and no
reaching above the right shoulder with the right arm.
The determination of whether an employee has the physical ability to perform a position
offered by the employing establishment is primarily a medical question that must be resolved by
the medical evidence.10
OWCP relied on the opinion of Dr. Benatar, an OWCP second opinion examiner, in finding
that the July 17, 2018 temporary job offer was within appellant’s physical limitations. In a June 1,
2018 report, Dr. Benatar reviewed appellant’s history, including the SOAF, and provided
examination findings. He indicated that appellant’s accepted condition had not resolved and that
he still required medical treatment. Dr. Benatar reported that appellant could not return to his dateof-injury job, but was capable of working in a full-time, limited-duty capacity. He completed a
work capacity evaluation form with specified restrictions.
The Board finds that the medical evidence of record establishes that the physical
requirements of the offered assignment were within the medical restrictions as provided by

7

20 C.F.R. § 10.500(a).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(c)(1)
(June 2013).
9

Id. at Chapter 2.814.9(b)(4).

10

See J.J., Docket No. 17-0885 (issued June 16, 2017); G.C., Docket No. 17-0140 (issued April 13, 2017); N.D.,
Docket No. 15-0027 (issued February 4, 2016); T.T., 58 ECAB 296 (2007).

5

Dr. Benatar in his June 1, 2018 second-opinion report.11 The offered part-time, light-duty
assignment was also appropriate because appellant was notified in writing that such light duty was
available when the employing establishment issued the July 17, 2018 job offer.12 Furthermore, in
its July 17, 2018 job offer, the employing establishment indicated that it would make all efforts to
increase work hours as work became available.
The Board further finds that OWCP complied with its procedural requirements. The
employing establishment provided appellant a written job offer on July 17, 2018. In its August 1,
2018 prereduction notice, OWCP provided him another copy of the July 17, 2018 job offer, along
with relevant medical evidence from Dr. Benatar and provided appellant an opportunity to respond
to its prereduction notice. Additionally, it properly applied the provisions of Shadrick in
determining appellant’s loss of wage-earning capacity.13
Dr. Ticker, appellant’s treating physician, submitted multiple reports detailing his
treatment of appellant. In reports dated March 14 to May 30, 2018, he provided examination
findings and diagnosed partial tear of the right subscapularis tendon and right biceps tendinitis.
Dr. Ticker opined that appellant was not able to perform the demands of his job nor any light-duty
option. The Board finds that Dr. Ticker’s medical reports do not establish that appellant could not
perform the July 17, 2018 light-duty assignment. Dr. Ticker did not attribute appellant’s inability
to work to his accepted June 20, 2017 employment injury. As he did not attribute appellant’s
inability to work to his accepted June 20, 2017 right shoulder strain and subluxation injury, his
opinion is of limited probative value to establish that appellant was unable to perform the July 17,
2018 light-duty assignment and insufficient to create a conflict in medical opinion evidence.14
The remaining medical evidence submitted after OWCP’s August 1, 2018 prereduction
notice is likewise insufficient to establish that appellant could not perform the offered July 17,
2018 light-duty assignment. In an August 22, 2018 work status note, Dr. Muratori indicated that
on July 23, 2018 he had treated appellant for his right shoulder injury and opined that appellant
was totally disabled due to swelling and pain. He did not, however, provide any medical reasoning
to support his opinion on disability, nor did he opine that appellant was unable to perform the
July 17, 2018 light-duty assignment.15 Dr. Muratori’s note is therefore of limited probative value
and insufficient to create a conflict in medical opinion evidence.
The Board thus finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 14, 2018, pursuant to 20 C.F.R. § 10.500(a), based on his earnings had he
accepted a light-duty assignment.
On appeal counsel argues that OWCP’s decision was contrary to law and fact. He did not,
however, provide any evidence or additional explanation to support his argument.
11

Dr. Benatar noted that appellant could work with restrictions of lifting or carrying up to 10 pounds for one to two
hours, pushing/pulling up to 20 pounds for two to three hours, reaching and reaching above the shoulder up to three
hours with the left shoulder and no reaching above the shoulder with the right arm, and no climbing ladders.
12

Supra note 7.

13

J.F., Docket No. 18-0923 (issued July 5, 2019).

14

C.B., Docket No. 18-0040 (issued May 7, 2019).

15

R.C., Docket No. 17-0748 (issued July 20, 2018); P.W., Docket No. 17-0154 (issued June 9, 2017).

6

CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 14, 2018, pursuant to 20 C.F.R. § 10.500(a), based on his earnings had he
accepted a light-duty assignment.
ORDER
IT IS HEREBY ORDERED THAT he March 7, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 7, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
K.M., Appellant
and
DEPARTMENT OF LABOR, ENERGY
EMPLOYEES OCCUPATIONAL ILLNESS
COMPENSATION PROGRAM, Denver, CO,
Employer
_________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 13-827
Issued: November 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 25, 2013 appellant filed a timely appeal from the February 5, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 18, 2008 appellant, then a 53-year-old senior workers’ compensation claims
examiner, filed a traumatic injury claim alleging that she was bitten on her body by fleas at work.
The employing establishment controverted the claim and stated that there were no fleas found.
Appellant stopped work on August 18, 2008.
By letter dated September 2, 2008, OWCP informed appellant of the evidence needed to
support her claim. It requested that she submit additional evidence within 30 days.
In a memorandum of telephone call dated September 4, 2008, appellant alleged that she
was bitten by mites or fleas at work on August 18, 2008. She noted that she went to the state
health department but no mites or fleas were found at the employing establishment.
In an e-mail dated August 21, 2008, the employing establishment explained that it hired
an exterminator. There were no fleas, mites or insects, with the exception of a fungus gnat,
“which does not bite.”
In a September 2, 2008 memorandum, E. Martin Walker, the employer’s regional
director, explained that an exterminator was unable to find any evidence of fleas or mites, with
the exception of a nonbiting fungus gnat.
By decision dated October 3, 2008, OWCP denied appellant’s claim on the grounds that
the evidence did not establish that the claimed events occurred as alleged.
Appellant requested reconsideration. In an October 1, 2008 statement, she noted that she
had eye surgery on July 17, 2008 and returned to work on July 22, 2008. Appellant did not
encounter any pest problems on the two days of that week which she worked. However, she was
out again and returned on August 4, 2008, which is when the problem began in her office area.
Appellant explained that her coworkers had similar problems. She believed the source of her
bites were mites. Appellant confirmed that she had two dogs; but did not believe they were the
source of the insect bites.
OWCP received statements from appellant’s coworkers. On October 7, 2008 Kristina
Picker advised that she was bitten the second week of June and “immediately received a big red
welt with a fiery itch.” She indicated “I know they happened at work, as I could tell immediately
when I was bitten and the bite didn’t happen until the afternoon, long after I had left home. The
last incident was about two weeks ago. I was standing in the aisle talking to Steve and Dennis
and told both of them that something had just bitten me and showed Dennis the welt. I haven’t
had a bite since that time.” On September 5, 2008 Eudocio Garcia noted that on August 15,
2008 he heard appellant stated that she was being eaten alive by fleas. Initially, he thought it was
funny, but as he continued to work with appellant, he also felt bites. Mr. Garcia later had bite
marks on his legs and neck. This was reported to a supervisor on August 18, 2008 which
resulted in a discussion about fleas being present in the office. In a September 5, 2008 statement,
Cathy Perez noted that she had several bites on her neck and arms in June 2008; but when she
went to her physician, the cause of her bites was uncertain. Coworkers Beatrice Calvert, Kathryn

2

Thompson and Wanda Gomes noted that they experienced similar bug bite symptoms while at
the employing establishment.
In an August 22, 2008 report, Dr. Scott R. Freeman a Board-certified dermatologist,
examined appellant for bug bites on the skin since July 21, 2008. Appellant indicated that the
bugs were invisible but followed her home and also bite her on the train and at her home.
Dr. Freeman noted a history of chronic cutaneous lupus on her arms and hands and
dermatographia.
OWCP also received treatment records from Dr. Janet Pederson, a Board-certified family
practitioner, dated August 26 to September 30, 2008. Dr. Pederson stated that appellant was
seen for possible insect bites that started at her workplace. Appellant felt that she was being
eaten alive, especially if she came in on a Monday. She related that at least 10 of her coworkers
had similar symptoms. Appellant also believed that she had brought the bugs home and that her
husband and dogs had similar symptoms. She advised that the employing establishment had the
health department inspect but no insects, mites or spiders were recovered. Dr. Pederson
diagnosed “possible infestation vs. neurodermatitis.” On September 4, 2008 she noted treating
appellant on August 26, 2008 after she was seen by two dermatologists about possible insect
bites. Appellant related that, since the end of May, she thought bug bites had started at her
workplace. Dr. Pederson advised that appellant would have stinging, and breaks in the skin on
her arms and legs. Appellant had an exterminator come to her home and treat it for mites which
improved her home situation. She hoped that similar extermination could be done at the
employing establishment. Dr. Pederson stated that “[b]ecause of intolerable itching and
discomfort in her skin she has not been to work since August 18[, 2008] and does not feel
comfortable returning to worksite until the site has been treated.” When appellant was seen on
September 4, 2008, she had persistent redness and breaking skin which was resolving. Since she
was just starting to improve, she should not return to work. Dr. Pederson diagnosed lupus and
opined that “those symptoms seem to have been aggravated by the above skin irritation. In a
September 30, 2008 attending physician’s report, she noted that appellant felt stinging pain in her
hair, scalp and nasal passages and had sores on her arms. Dr. Pederson diagnosed mite
infestation and checked the box “yes” to indicate that appellant’s condition was caused or
aggravated by her employment. She stated that appellant could return to work when the
environment was safe and her symptoms were controlled.
In a report dated September 27, 2008, Dr. Leslie Cepin, a dermatologist, determined that
appellant had a normal skin examination with no visible bites or mites.
In an October 22, 2008 report, Dr. Renata Oliveira, a Board-certified dermatologist,
noted that appellant’s husband had scabies but she found no lesions. She diagnosed infestation
per patient history only. In an October 22, 2008 report, Dr. Oliveira noted that an infestation of
mites had not been documented in the clinic but that appellant improved after treatment as well
as fumigating her house and isolating her dogs.
In a November 7, 2008 report, Kathleen Sandal-Miller, Ph.D., a licensed clinical
psychologist, stated that appellant developed major depression and post-traumatic stress disorder
due to “the infestation of skin mites which she feels she acquired at her workplace.”

3

In a November 20, 2008 decision, OWCP denied the modification of the October 3, 2008
decision.
On December 15, 2008 appellant submitted a November 18, 2008 statement reiterating
her belief that the bites stemmed from her workplace. On November 7, 2009 she requested
reconsideration. Appellant repeated her arguments of an infestation of mites at work as
supported by the medical evidence. OWCP received copies of previously submitted evidence.
In a September 11, 2008 report, Dr. Juan Miranda-Seijo, a Board-certified family
practitioner, diagnosed dermatitis. He noted that he could only say that a mite etiology was
possible.
In a November 5, 2008 report, Dr. Oliveira advised that the infestation of mites was never
documented and that appellant brought in strip of what she thought were mites. Under the
microscope, the material brought in for examination was found to be “pieces of fiber and fabric.”
In a December 2, 2008 report, Dr. Shayla Francis, a Board-certified dermatologist, noted that
there was no evidence of mites on any examination.
In an October 14, 2008 report, Dr. Pederson diagnosed possible mite infestation and
anxiety and depression/reactive. In a November 17, 2008 report, she advised that the “mites
have returned.” On December 5, 2008 Dr. Pederson noted symptoms of small papules, puncture
wounds and angiomata.
In a May 12, 2009 report, Gilbert Milburn-Westfall, Ph.D., a clinical psychologist, noted
appellant’s history and treatment. He was unable to verify the presence of mites. In a
September 23, 2009 report, a Dr. Sandal-Miller, related appellant’s assertions regarding possible
mite infestation at work and diagnosed disabling depression due to the infestation. In an April 7,
2009 Public Health Report on Dermatologic Illness, it was noted that, while several employees
had noted similar symptoms, there was not enough evidence to conclusively determine the cause.
By decision dated January 29, 2010, OWCP denied modification of the October 3, 2008
decision.
On November 10, 2010 appellant requested reconsideration. She provided a copy of a
November 2, 2010 decision of the Board, concerning the claim of a coworker for bug bites at the
workplace on October 23, 2008. Appellant argued that OWCP had disregarded the Board’s
decision that accepted insect bites. She asserted that her employer’s statement was not sufficient
to overcome the statements of her former coworkers.
By decision dated February 14, 2011, OWCP denied modification of the January 29,
2010 decision.
On February 13, 2012 appellant requested reconsideration. She submitted a pathology
report dated January 12, 2009 which revealed no evidence of mite infestation. In a February 7,
2012 report, Dr. Pederson noted that the diagnosis of mite infestation was never proven.
Appellant believed that the “temporary improvement in her symptoms lends support to the
diagnosis of mite infestation.”

4

In a May 22, 2012 decision, OWCP found that appellant’s reconsideration request was
untimely. On January 25, 2013 the Board issued an order remanding case.2 The Board found
that appellant’s request for reconsideration was timely. It remanded the case for application of
the regulatory standard applicable to timely requests for reconsideration.
In a February 5, 2013 decision, OWCP denied the claim finding insufficient evidence to
establish that the claimed incident occurred. There was also insufficient medical evidence
explaining how work exposures contributed to her medical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each 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
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and the circumstances and his
subsequent course of action.9 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.10 An employee’s statement alleging that an injury occurred at a given time and in a
2

Docket No. 12-1349 (issued January 25, 2013).

3

5 U.S.C. §§ 8101-8193.

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.

9

Rex A. Lenk, 35 ECAB 253, 255 (1983).

10

Dorothy M. Kelsey, 32 ECAB 998 (1981).

5

given manner is of great probative value and will stand unless refuted by strong or persuasive
evidence.11
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.12
ANALYSIS
Appellant alleged that she was bitten by mites or fleas at work on August 18, 2008 and
sustained multiple bites to her body. The issue is whether such insect bites occurred in the
performance of duty.
The Board finds that appellant’s claim of exposure to insect or biting pests is consistent
with the facts and her subsequent course of action. Appellant alleged that she was bitten by
mites or fleas at work and provided statements from her coworkers, who reported similar
symptoms. The Board notes that a fellow coworker, Mr. Garcia, reported that on August 15,
2008 he heard appellant state that she was being eaten alive by fleas. He explained that he, too,
began to feel bites on his legs and neck. Mr. Garcia noted that this was reported to a supervisor
on August 18, 2008 and resulted in a discussion about fleas being present in the office. The fact
that an infestation occurred at her home or that she had pets does not preclude an exposure at
work. Although, the employing establishment provided documentation that no fleas or mites
were found at the premises, the statements from appellant and her coworkers are consistent with
the facts of her case. In the present case, the Board finds that appellant established that the
incident, exposure to insects or other biting pest occurred on and around August 18, 2008, as
alleged.
The Board, however, finds the medical evidence of record insufficient to establish that
appellant sustained an injury as a result of the accepted employment incident.
Appellant provided numerous reports from her treating physicians. In her August 26 and
September 4 2008 reports, Dr. Pederson indicated that appellant was being seen for possible
insect bites which started at her workplace and diagnosed “possible infestation vs.
neurodermatitis.” The Board has held that speculative and equivocal medical opinions regarding
causal relationship have no probative value.13 Thus, these reports are of limited probative value.
In her September 30, 2008 attending physician’s report, Dr. Pederson diagnosed mite infestation
and checked a box “yes” that the condition was caused or aggravated by her work. However, the
checking of a box yes in a form report, without additional explanation or rationale, is not
11

Id.

12

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

13

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).

6

sufficient to establish causal relationship.14 In a February 7, 2012 report, Dr. Pederson
acknowledged that the diagnosis of mite infestation was never proven or disproven but she
believed that the “temporary improvement in her symptoms lends support to the diagnosis of
mite infestation.” The Board notes that this report does not provide any medical rationale
explaining how or why appellant’s condition was caused by the accepted employment incident
and, therefore, the report is insufficient to establish her claim. This type of report, without more
medical rationale explaining how workplace pest exposure caused a diagnosed condition is
insufficient to establish causal relationship and is of diminished probative value.15 Dr. Pederson
submitted an additional report dated October 14, 2008 in which she diagnosed possible mite
infestation and anxiety and depression/reactive. The Board finds that this report is speculative
and is of limited probative value.16 Other reports from Dr. Pederson do not clearly and
unequivocally attribute a diagnosed medical condition to appellant’s workplace exposure.
In a November 7, 2008 report, Dr. Sandal-Miller indicated that appellant developed
major depression and post-traumatic stress disorder due to “the infestation of skin mites which
she feels she acquired at her workplace.” However, without a rationalized opinion to explain
how she arrived at this diagnosis, this report is of limited probative value. The Board has held
that a medical opinion not fortified by medical rationale is of little probative value.17 A
September 23, 2009 report of Dr. Sandal-Miller is also of limited probative value as she provides
insufficient medical rationale explaining how the employment exposure contributed to a
diagnosed medical condition and why appellant’s condition is not attributable to any preexisting
conditions.
In a September 11, 2008 report, a Dr. Juan Miranda-Seijo, diagnosed dermatitis and
opined that a mite etiology was possible. The Board notes that this report is speculative and
offers no opinion on causal relationship.18
In a November 5, 2008 report, Dr. Oliveira advised that appellant brought in strip of what
she thought were mites; however, under the microscope, the “mites” brought in for examination
were found to be “pieces of fiber and fabric.” Furthermore, in a December 2, 2008 report,
Dr. Francis noted that there was no evidence of mites on any examination. The Board notes that
these reports do not offer any support that appellant had a condition caused by mites at work.
Other reports submitted by appellant also did not offer any support for causal relationship.
Based on the foregoing, the Board finds that appellant has failed to submit sufficient
rationalized medical evidence to establish that she sustained an injury caused by the August 18,

14

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

15

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

16

See supra note 13.

17

S.D., 58 ECAB 713 (2007).

18

See supra note 13.

7

2008 employment incident.19 The evidence of record is therefore insufficient to meet appellant’s
burden of proof and OWCP properly denied appellant’s claim for compensation.
On appeal, appellant argued that she submitted documentation sufficient to establish her
claim. The Board notes that the first component, the factual incident, of her claim was
established. However, the medical evidence was insufficient to establish that the incident caused
or contributed to a diagnosed medical condition. Appellant also asserted that her claim should be
accepted because the claim of a coworker had been accepted. However, while the other matter
may have some similarities with the present case, this does not establish compensability in
appellant’s situation which involves different medical evidence specific to appellant’s situation.
Appellant also submitted additional evidence with her appeal. The Board has no jurisdiction to
review this evidence for the first time on appeal.20
Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on August 18, 2008 as alleged.

19

See Laura Swilley, Docket No. 93-1769 (issued November 16, 1994) (appellant alleged that she sustained a tick
bite in the performance of duty resulting in Lyme Disease). In affirming OWCP’s denial of the claim for failure to
establish fact of injury, the Board found that assuming appellant had established a tick bite, this did not obviate the
necessity of appellant submitting rationalized medical evidence, based on a complete and proper background
establishing causal relationship between appellant’s condition and the employment incident.
20

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

8

ORDER
IT IS HEREBY ORDERED THAT the August 9, 2012 decision of the Office of the
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Joliet, IL, Employer
__________________________________________

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

Docket No. 14-1577
Issued: November 4, 2014

Case Submitted on the Record

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

JURISDICTION
On June 27, 20141 appellant filed a timely appeal from a nonmerit decision of the Office
of Workers’ Compensation Programs (OWCP) dated January 2, 2014. As the last merit decision
was issued on November 15, 2012, more than 180 days before the filing of this appeal, and
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128(a).

1

This appeal was received by the Board on July 3, 2014. As the date of receipt would render the appeal untimely
filed, the date of the postmark was used to establish the date of filing. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 48-year-old field representative, filed a Form CA-2 claim for benefits on
November 3, 1999 alleging bilateral trigger thumb, carpal tunnel and de Quervain’s syndromes
causally related to factors of employment. OWCP accepted the claim for bilateral trigger thumb,
right-sided carpal tunnel syndrome and right-sided de Quervain’s syndrome. Appellant received
compensation through daily and supplemental rolls.3
In order to determine whether appellant could return to full duty, OWCP referred him to
Dr. Richard Sidell, Board-certified in orthopedic surgery, for a second opinion examination. In a
February 2, 2007 report, Dr. Sidell provided findings on examination, reviewed the medical
history4 and the statement of accepted facts. He found that there was no reason why appellant
could not function within the limitations of the job description for an eight-hour day. Dr. Sidell
stated that he appeared to have some residual scarring or fibrosis in the flexor tendon sheath of
both thumbs at the level of the metacarpophalangeal joint. He also had capsular instability with
voluntary volar subluxation of the metacarpophalangeal joint, which was a preexisting condition
that appellant had throughout his lifetime. Dr. Sidell opined that this condition was probably
responsible for all of his current problems.
In a July 2, 2007 report, Dr. Gordon H. Derman, specialist in family practice and
appellant’s treating physician, stated although he felt Dr. Sidell’s opinion was generally
satisfactory, he believed that to truly determine appellant’s ability to work, he should undergo a
more focused functional capacity evaluation, one that addressed his specific work tasks.
By decision dated December 3, 2007, OWCP terminated appellant’s compensation,
finding that Dr. Sidell’s report represented the weight of the medical evidence.5
Appellant continued to treat with Dr. Derman. In a progress note dated September 10,
2008, Dr. Derman related that appellant still had thumb pain and remained off work.6 He also
noted that appellant was treated by Dr. Colvin R. Brown, an internist, for his fibromyalgia
condition. Appellant requested reconsideration on December 3, 2008.
By decision dated March 11, 2009, OWCP denied modification of the prior decision,
finding that the new evidence submitted failed to establish disability due to the accepted
conditions.

3

Appellant had various periods of disability and part-time employment.

4

Dr. Sidell noted reviewing functional capacity evaluations dated September 9, 2004 and April 10, 2006.

5

By decision dated April 24, 2008, OWCP found that appellant had abandoned his request for a hearing before
the Branch of Hearings and Review. Appellant thereafter requested an appeal before the Board on July 21, 2008,
but withdrew his request. This appeal was dismissed pursuant to appellant’s request on November 21, 2008.
6

Appellant remained off work due to a fibromyalgia condition which has not been accepted as employment
related.

2

In a March 11, 2009 progress note, received by OWCP on January 19, 2010, Dr. Derman
related that there was still no resolution regarding the issue of a functional capacity evaluation
for appellant, therefore his case could not be closed.
On March 2, 2010 appellant requested reconsideration. In support of his request, he
submitted medical reports from Dr. Brown, an internist. In a July 3, 2008 report, Dr. Brown
related that appellant had fibromyalgia, which was exacerbated by his November 9, 1997 injury.
In a January 10, 2010 report, he related that appellant had a history of fibromyalgia and hand
osteoarthritis and was doing poorly. On March 2, 2010 OWCP also received a questionnaire
completed by Dr. Brown who agreed with appellant’s diagnosis of trigger finger of the right
thumb and bilateral lateral epicondylitis, as well as fibromyalgia. Dr. Brown did not expect
appellant’s condition to improve, and he remained totally disabled.
By decision dated May 28, 2010, OWCP denied modification of the prior decision.
On September 8, 2010 Dr. Derman reported that appellant had retired. On examination,
appellant showed signs of a trigger of the right small finger, which appellant stated had been a
continuous problem and had again worsened. He recommended a steroid injection.
On May 24, 2011 appellant requested reconsideration.
By decision dated August 11, 2011, OWCP denied modification of the May 28, 2010.
In a progress note dated May 11, 2011, received by OWCP on November 28, 2011,
Dr. Derman related that there had been no change in appellant’s condition. In notes dated
September 14, 2011 and January 11, 2012 Dr. Derman reiterated that appellant should undergo a
functional capacity evaluation.
In a September 12, 2012 report, received by OWCP on January 7, 2013, Dr. Derman
stated that appellant had returned for his disability evaluation and that his right thumb trigger
persisted. He recommended that appellant proceed with a functional capacity evaluation which
addressed his workplace activities. Dr. Derman advised that he would see appellant again for
follow up if these issues were not resolved within a few months. He also submitted a
September 12, 2012 Form CA-20 in which he stated that appellant had right-sided trigger thumb
and bilateral epicondylitis. Dr. Derman checked a box indicating that the condition found was
caused or aggravated by an employment activity.
On November 15, 2012 OWCP reviewed the merits of the claim and denied modification
of the prior decision.
OWCP received a September 12, 2012 progress note from Dr. Derman on
January 7, 2013. Dr. Derman reiterated that appellant had persistent right thumb trigger and
recommended a functional capacity evaluation. On March 6, 2013 he provided appellant with a
new thumb brace, but he still complained of pain, but there was no worsening of his condition.
In an April 17, 2013 procedure note Dr. Derman related that appellant’s diagnosis was
trigger finger. He was given an injection of the tendon sheath, ligament, and ganglion cyst.

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In a September 11, 2013 report, Dr. Brown stated that appellant continued to be treated
for fibromyalgia and continued to be fully disabled since November 9, 1997.
In an October 2, 2013 report, Dr. Derman repeated that appellant was being treated for
bilateral trigger thumb, right de Quervain’s, syndrome and right carpal tunnel syndrome. He
opined that he required an independent medical examination, and functional capacity evaluation
that was specific to his workplace activities. Dr. Derman instructed appellant to remain on light
duty with restrictions as needed.
On November 7, 2013 appellant requested reconsideration.
By decision dated January 2, 2014, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by constituting relevant and
pertinent evidence not previously considered by OWCP.7 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.8
ANALYSIS
The Board finds appellant has not shown that OWCP erroneously applied or interpreted a
specific point of law; nor has he advanced a relevant legal argument not previously considered.
The Board further finds that appellant did not submit new and relevant medical evidence which
required OWCP to conduct a merit review. OWCP therefore did not abuse its discretion by
denying merit review.
Dr. Derman’s reports reiterated his previously stated opinions that appellant continued to
have the diagnosed conditions of right trigger thumb, right de Quervain’s syndrome, and carpal
tunnel syndrome. He also repeated his recommendation that appellant be referred for another
functional capacity test. These are the same opinions Dr. Derman has offered since 2007. His
reports reiterated his general recommendations and findings of disability. Dr. Brown stated that
appellant continued to be treated for fibromyalgia, a condition not accepted by OWCP, and
continued to be fully disabled since November 9, 1997. The reports appellant submitted are
cumulative and duplicative.9

7

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

8

Howard A. Williams, 45 ECAB 853 (1994).

9

See Patricia G. Aiken, 57 ECAB 441 (2006).

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Appellant submitted summary reports from Drs. Derman and Brown. The Board has held
that the submission of evidence which does not address the particular issue involved in the case
does not constitute a basis for reopening the claim.10 The evidence appellant submitted in
connection with his January 2, 2014 reconsideration request is not pertinent to the issue on
appeal; i.e., whether he had any continuing disability stemming from his accepted right-sided
carpal tunnel syndrome, right-sided de Quervain’s syndrome and bilateral trigger thumb
conditions.
OWCP did not abuse its discretion in refusing to reopen appellant’s claim for a review on
the merits in its January 2, 2014 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 2, 2014 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10

See David J. McDonald, 50 ECAB 185 (1998).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, KENMORE
STATION, Kenmore, NY, Employer
__________________________________________

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Appearances:
Melanie M. Peterson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-380
Issued: May 20, 2008

Case Submitted on the Record

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

JURISDICTION
On November 16, 2007 appellant, through his attorney, filed a timely appeal of a
March 5, 2007 nonmerit decision of the Office of Workers’ Compensation Programs, denying
his request for reconsideration. Because more than one year has elapsed between the last merit
decision dated February 7, 2006 and the filing of the appeal, the Board lacks jurisdiction to
review the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 14, 2005 appellant, then a 45-year-old customer service supervisor, filed a
traumatic injury claim alleging that on January 31, 2005 he sustained trauma, sleeplessness,
depression and neck and shoulder stiffness with headaches. He stated that an unknown
employee left a newspaper clipping about a supervisor who was killed by an employee. On

February 11, 2005 appellant stopped work. On his claim form, James Gavner, an employing
establishment manager, controverted the claim.
By letter dated February 28, 2005, the Office requested factual and medical evidence
appellant needed to submit to establish his claim. It also requested that the employing
establishment respond to his allegation.
In an undated narrative statement, Mr. Gavner contended that appellant’s injury was not
work related. He stated that appellant failed to timely report his injury in accordance with the
employing establishment’s policy. Mr. Gavner related that the timing of the newspaper clipping
was suspicious as it appeared shortly after appellant was questioned about his poor work
performance. As a result, he was transferred to another post office by Iggy Vaccaro, an up line
supervisor, which made him extremely unhappy. Mr. Gavner spoke to appellant on January 31,
2005 about the newspaper clipping. He did not seem phased by it and acted extremely
nonchalant. At no point did appellant express any concern or feelings about the article.
Mr. Vaccaro requested an investigation of the alleged incident. Mr. Gavner gave a lengthy
service talk to all employees regarding appropriate behavior at work. He stated that appellant
had several opportunities during regular meetings to discuss the article and his resultant
symptoms but failed to do so. The employing establishment also controverted appellant’s claim
on the grounds that no medical evidence had been submitted to establish a causal relationship
between any alleged emotional condition and his employment.
In a March 6, 2005 narrative statement, appellant described the January 31, 2005
incident. He found a newspaper clipping on his desk around 8:30 a.m. Appellant read it and was
stunned. He gave it to Ann Niemiec, a coworker, who read it and gasped. Ms. Niemiec
immediately took the article to Mr. Gavner. Meanwhile, appellant went to the bathroom and put
cold water on his face. He tried to brush off the article and finished his workday. Appellant
contended that he did not delay in filing his claim as he was not scheduled to work on
February 10, 2005. On February 10 and 22, 2005 he received medical treatment related to the
January 31, 2005 incident. Appellant was diagnosed with depression and given medication for
his stomach problem.
Appellant submitted a disability certificate dated March 10, 2005 and medical reports
dated March 14 and 16, 2005 which addressed his ability to return to work. A March 23, 2005
authorization for examination and/or treatment stated that he suffered from depression, neck
stiffness and headaches due to the January 31, 2005 incident.
By decision dated March 31, 2005, the Office denied appellant’s claim, finding that he
did not sustain an emotional condition in the performance of duty. It found the factual evidence
of record insufficient to establish that the January 31, 2005 incident occurred at the time, place
and in the manner alleged. The Office further found the medical evidence of record insufficient
to establish that appellant sustained an injury caused by the alleged incident.
The Office received medical treatment notes dated February 10 to July 5, 2005 which
addressed appellant’s depression and insomnia problems.

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By letter dated November 9, 2005, appellant requested reconsideration of the March 31,
2005 decision. He contended that on January 31, 2005 his life was threatened at work which
constituted a crime. Appellant further contended that he was traumatized and suffered a
breakdown due to this incident. He stated that Mr. Gavner’s allegation that he was facing
disciplinary action was irrelevant as his life was threatened. Appellant acknowledged that he had
many opportunities to discuss the alleged incident, but failed to do so because his reaction to the
incident was to suppress it and pretend that it never happened. He described his emotional and
physical ailments resulting from the January 31, 2005 incident.
Appellant submitted a June 22, 2005 medical report of Dr. Horacio A. Capote, a Boardcertified psychiatrist, who reviewed a history of the January 31, 2005 incident. Dr. Capote stated
that appellant suffered from bipolar disorder, post-traumatic stress disorder, irritable bowel
syndrome and severe stressors. A July 26, 2005 report of Dr. Joshua M. Usen, a family
practitioner, stated that appellant sustained a post-traumatic stress reaction due to the January 31,
2005 incident.
In an August 22, 2005 letter, Ms. Niemiec stated that on January 31, 2005 appellant
showed her the newspaper article. He appeared to be in shock. After reading the article,
Ms. Niemiec took it to Mr. Gavner. She never heard another word about the article.
Ms. Niemiec believed that it affected appellant’s work performance a great deal.
By decision dated February 7, 2006, the Office denied modification of the March 31,
2005 decision. It found the factual evidence of record insufficient to establish that the
January 31, 2005 incident occurred at the time, place and in the manner alleged.1
The Office received a March 28, 2006 report of Dr. Kristin Stievater Ahrens, a Boardcertified psychiatrist, who stated that appellant’s depressive disorder, not otherwise specified,
was caused by a work-related stressor. Dr. Ahrens stated that his depression and secondary
anxiety evolved over time which was the reason why he delayed seeking medical treatment.
By letter dated February 5, 2007, appellant, through his attorney, requested
reconsideration of the February 7, 2006 decision. Counsel contended that appellant worked
under extremely stressful conditions at the employing establishment from July 2004 through
January 2005 during his attempt to improve operations. He was compelled to take warranted
disciplinary action which was disliked by his subordinates. On January 31, 2005 appellant
conducted meetings with his employees who were greatly displeased by his comments. When he
returned to his desk, he discovered the newspaper clipping. Counsel noted appellant’s and
Ms. Niemiec’s reaction to the article. She stated that Mr. Gavner did not take any action related
to the article and no investigation was ever conducted. Counsel explained that appellant did not
seek medical treatment until February 10, 2005 because his insight was impaired. It was not
until he realized that he could not return to the workplace or sleep that he sought medical
treatment. Counsel argued that the medical evidence of record established a causal relationship
between appellant’s emotional condition and the January 31, 2005 incident. She denied that he
only filed a claim in response to being relocated. Counsel stated that Mr. Vaccaro never told
1

In the February 7, 2006 decision, the Office also found that since appellant had not met his burden of proof to
establish fact of injury, it was not necessary to discuss the probative value of the medical evidence of record.

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appellant that the relocation was the result of disciplinary action. He was not unhappy about the
transfer as he wished to go to a station that he was familiar with and he had requested a transfer
in November 2004 due to a leg surgery. Counsel stated that appellant did not discuss personal
issues including his chiropractic care during regular meetings at work.
Appellant submitted Dr. Usen’s August 7 and September 7, 2006 reports. Dr. Usen
stated that appellant continued to experience post-traumatic stress syndrome. In notes dated
May 2 to November 30, 2006, he stated that appellant was totally disabled for work during
intermittent periods from April 3, 2006 to January 5, 2007 due to his ongoing illness. In a
June 6, 2006 report, Dr. Usen stated that appellant did not feel well enough to return to work in
any capacity. He planned to release him to return to work on July 7, 2006.
By decision dated March 5, 2007, the Office denied appellant’s request for
reconsideration.2 It found that the evidence submitted was either repetitive or not relevant and,
thus, insufficient to warrant further merit review of its prior decisions.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,3 the Office’s regulation provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.4 To be entitled to a merit review of an
Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.5 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.
ANALYSIS
By letter dated February 5, 2007, appellant disagreed with the Office’s decisions, which
denied his claim on the grounds that the fact of injury was not established, as the evidence of
record did not establish that the January 31, 2005 incident occurred as alleged. The relevant
issue in this case is the factual question of whether appellant has established that the claimed
incident occurred as alleged.
In his request for reconsideration, appellant reiterated his previous contention that the
January 31, 2005 incident involved a newspaper article he found on his desk about a supervisor
2

The Office noted that a copy of the decision would not be mailed to appellant’s attorney because there was no
written notice provided by appellant appointing her as his representative before the Office.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

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who was killed by a disgruntled employee. He contended that his emotional condition was not
due to his relocation to another post office and that he did not delay seeking medical treatment.
These allegations were previously considered and addressed by the Office. Therefore, they do
not constitute relevant legal argument or relevant and pertinent evidence not previously
considered by the Office.6
Dr. Ahrens’ March 28, 2006 report stated that appellant’s depressive disorder, not
otherwise specified, was caused by a work-related stressor. Dr. Usen’s reports advised that
appellant continued to suffer from post-traumatic stress syndrome. On June 6, 2006 he opined
that appellant was totally disabled for work until July 7, 2006. Dr. Usen also stated that
appellant was totally disabled on intermittent dates from April 3, 2006 to January 5, 2007 due to
an ongoing illness. The Office, however, is not required to consider medical evidence in an
emotional condition case where no work factors have been established.7 The reports and
treatment notes of Dr. Ahrens and Dr. Usen, consequently, are not relevant to the underlying
issue in this case, which is the factual question of whether appellant has established that the
January 31, 2005 incident occurred as alleged.8 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.9
The Board finds that appellant did not submit arguments or evidence showing that the
Office erroneously applied or interpreted a specific point of law; advancing a relevant legal
argument not previously considered; or constituting relevant and pertinent new evidence not
considered previously by the Office. As appellant did not meet any of the necessary regulatory
requirements, the Board finds that his claim is not entitled to further merit review.10
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
his claim pursuant to 5 U.S.C. § 8128(a).

6

Patricia G. Aiken, 57 ECAB 441 (2006).

7

See Richard Yadron, 57 ECAB 207 (2005).

8

Even assuming the newspaper clipping incident took place as alleged, it would not constitute a compensable
factor of employment. See Edye Ann Smith, 49 ECAB 463 (1998) (a secretary who learned of the death of her
children in the Murrah Federal Building bombing did not sustain an emotional condition arising in the performance
of duty); Carla E. Phillips, 39 ECAB 1040 (1998) (a distribution clerk who learned of the murder of her husband
did not sustain an emotional condition arising in the performance of duty). Accord, Kathryn S. Graham, 49 ECAB
458 (1998); Gregory N. Waite, 46 ECAB 662 (1995). See also Richard L. Harris, Docket No. 02-152 (issued
May 2, 2002).
9

Patricia G. Aiken, supra note 6.

10

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

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ORDER
IT IS HEREBY ORDERED THAT the March 5, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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