United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT,
Drakesboro, KY, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1760
Issued: January 17, 2008

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from October 6, 2006 and March 29,
2007 decisions of the Office of Workers’ Compensation Programs denying his occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant sustained chronic obstructive pulmonary disease, chronic
bronchitis or pneumoconiosis in the performance of duty. On appeal, appellant asserts that the
opinion of an impartial medical examiner, Dr. Manoj H. Majmudar, a Board-certified
pulmonologist, cannot represent the weight of the medical evidence as he did not examine
appellant, did not review the medical record and computerized tomography (CT) scans and did
not provide adequate medical rationale. Appellant also asserted that Dr. Majmudar was not a B
Reader and was therefore not qualified to evaluate diagnostic studies for the presence of
pneumoconiosis.

FACTUAL HISTORY
This is the second appeal before the Board in the case. By decision dated July 20, 2006,1
the Board set aside a December 15, 2005 decision of the Office finding that appellant failed to
establish that he sustained an occupational lung disease. The Board found a conflict of medical
opinion between Dr. William C. Houser, an attending Board-certified pulmonologist, and
Dr. Kenneth C. Anderson, a second opinion physician specializing in pulmonary medicine.
Dr. Houser diagnosed mild chronic obstructive pulmonary disease (COPD) and chronic
bronchitis due to occupational exposure to asbestos, coal dust, flue gas, welding fumes, smoke,
trichloroethylene and cigarette smoke. Dr. Anderson opined that appellant’s mild COPD was
caused by smoking and not occupational exposures. The Board remanded the case to the Office
for appointment of an impartial medical examiner to resolve the conflict of medical opinion.
On August 14, 2006 the Office referred appellant, the medical record and a statement of
accepted facts to Dr. Majmudar, a Board-certified pulmonologist, to resolve the conflict of
medical opinion between Dr. Houser, for appellant and Dr. Anderson, for the government.
Appellant attended the appointment as scheduled on September 25, 2006.
Dr. Majmudar submitted a September 12, 2006 chart note relating appellant’s symptoms
of shortness of breath. He noted “COPD changes, old fracture ribs on [right], no plaques seen.”
In an October 2, 2006 letter, Dr. Majmudar noted reviewing Dr. Anderson’s November 17, 2004
report, Dr. Houser’s November 20, 2003 report, CT scans, chest x-rays and pulmonary function
test reports. Dr. Majmudar opined that appellant’s condition was “related to his 40 to 60 pack
year smoking causing mild chronic obstructive airway impairment.” He noted that Dr. Houser
opined that October 16, 2002 studies showed pleural plaque in the left diaphragm. However, an
October 4, 2005 CT scan report indicated no pleural plaque or pulmonary fibrosis.
Dr. Majmudar opined that chest CT scans were more accurate than x-rays in diagnosing
pneumoconiosis. He stated that based on appellant’s history, examination and the medical
record, appellant had no “evidence suggestive of asbestos or pleural plaque. [Dr. Majmudar]
believe[d] all [appellant’s] symptoms [were] related to mild chronic obstructive airway
impairment from cigarette smoking.” He noted that he agreed with Dr. Anderson.
By decision dated October 6, 2006, the Office denied appellant’s claim for occupational
lung disease on the grounds that causal relationship was not established. The Office found that
the weight of the medical evidence rested with Dr. Majmudar who submitted a well-rationalized
report based on a complete and accurate history finding that appellant had no work-related lung
conditions.
In an October 17, 2006 letter, postmarked October 18, 2006, appellant requested an oral
hearing. In a November 7, 2006 letter, his attorney requested copies of Dr. Majmudar’s
examination report and pulmonary function tests. The Office responded by November 14, 2006
letter, that Dr. Majmudar reviewed previous evidence but did not obtain new studies. The Office
noted that it enclosed a copy of a September 12, 2006 x-ray report. There is no copy of the x-ray
report of record.
1

Docket No. 06-906 (issued July 20, 2006).

2

At the hearing, held February 6, 2007, appellant asserted that he had daily occupational
exposure to coal dust, flue gas and asbestos dust from 1970 through his retirement in
January 1999. He asserted that Dr. Majmudar was confused as to why appellant had presented
for an examination. Dr. Majmudar used a stethoscope to listen to appellant’s breathing and
stated “well that [i]s all.” Appellant asked if the doctor should obtain a chest x-ray.
Dr. Majmudar then said “I guess I could,” then had the x-ray taken. Appellant asserted that
Dr. Majmudar’s opinion could not be accorded the weight of the medical evidence as he did not
perform a thorough examination or obtain a complete medical history. Also, Dr. Majmudar did
not review the CT films, only the CT report.
Appellant submitted new medical evidence. In a February 2, 2007 report, Dr. Glen
Baker, a Board-certified pulmonologist and a B Reader,2 opined that appellant’s CT scan
“showed mild fibrosis that could be either scarring or due to pneumoconiosis. There [was] no
definite pattern of pulmonary fibrosis.” In an accompanying form report, he checked a box “no”
indicating that there were no pleural abnormalities consistent with pneumoconiosis. Dr. Baker
explained that, while the scan was not diagnostic of pneumoconiosis, there were some scattered
fibrotic changes present. He explained that a negative CT scan was not dispositive in ruling out
pneumoconiosis.
Medical literature showed that chest x-rays read as positive for
pneumoconiosis by B Readers “frequently had CT scans read as negative.”
By decision dated and finalized March 29, 2007, an Office hearing representative
affirmed the Office’s October 6, 2006 decision finding that appellant had not established that he
sustained an occupational lung disease. The hearing representative found that Dr. Majmudar’s
opinion continued to carry the weight of the medical evidence as it was based on a proper
background and was sufficiently rationalized. He further found that Dr. Baker’s report was
insufficient to outweigh that of Dr. Majmudar on the issue of whether a CT scan could
definitively rule out pneumoconiosis. The hearing representative noted that the Office provided
appellant with a copy of Dr. Majmudar’s September 12, 2006 x-ray report.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 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 the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
2

A “B [R]reader” is a radiologist who undergoes specialized training, examination and certification by National
Institute of Occupational Safety and Health (NIOSH) in the early detection of asbestosis and pneumoconiosis.
3

5 U.S.C. §§ 8101-8193.

4

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

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

3

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial 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.6
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.7 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.8 However, in a situation where the Office secures an opinion from an
impartial medical examiner for the purpose of resolving a conflict in the medical evidence and
the opinion from such examiner requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the examiner for the purpose of correcting the
defect in the original opinion.9
ANALYSIS
Appellant claimed that he sustained COPD, chronic bronchitis and pneumoconiosis due
to occupational exposures to coal dust, flue gas and asbestos. In decisions prior to the first
appeal, the Office denied the claim on the grounds that causal relationship was not established.
The Board found a conflict of medical evidence between Dr. Anderson, a second opinion
physician specializing in pulmonary medicine and Dr. Houser, an attending Board-certified
pulmonologist. On remand of the case, the Office obtained an impartial medical opinion from
Dr. Majmudar, a Board-certified pulmonologist.
6

Solomon Polen, 51 ECAB 341 (2000).

7

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

8

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

9

Margaret M. Gilmore, 47 ECAB 718 (1996).

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Dr. Majmudar opined that appellant had COPD due solely to smoking. However, he did
not provide sufficient medical rationale explaining the basis for this conclusion. Dr. Majmudar
did not provide a health history, note the type and duration of appellant’s occupational exposures
or provide findings on clinical examination. Thus, his report was incomplete and required
clarification.10 The Office issued its October 6, 2006 decision denying appellant’s claim without
obtaining a supplemental report from Dr. Majmudar. It affirmed this decision on March 29,
2007 without requesting clarification from Dr. Majmudar.
The Board finds that, since the Office undertook development of the medical evidence, it
must obtain a reasoned report as to the nature of appellant’s pulmonary conditions and whether
they are work related.11 The Board directs the Office to request a supplemental, clarifying report
from Dr. Majmudar on these issues. Following this and all other development deemed
necessary, the Office shall issue an appropriate decision in the case.
The Board notes that the Office stated that it provided appellant a copy of
Dr. Majmudar’s September 12, 2006 x-ray report. The Office hearing representative also
mentioned this report. However, the x-ray report is not of record. On remand of the case, the
Office shall obtain a copy of this report and associate it with the case record.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
for further development.

10

Id.

11

See, e.g., Elmer K. Kroggel, 47 ECAB 557 (1996) (the Board remanded the case for the Office to obtain a
supplemental report from the impartial medical specialist).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Worker’s
Compensation Programs dated March 29, 2007 and October 6, 2006 are set aside and the case
remanded for further action consistent with this opinion.
Issued: January 17, 2008
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
ARMAMENT RESEARCH DEVELOPMENT &
ENGINEERING CENTER, PICATINNY
ARSENAL, Picatinny, NJ, Employer
__________________________________________
Appearances:
Howard L. Graham, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-1187
Issued: August 7, 2020

Case Submitted on the Record

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

On May 3, 2019 appellant, through counsel, filed a timely appeal from an April 16, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 19-1187.
On August 15, 2017 appellant, then a 59-year-old engineer, filed an occupational disease
claim (Form CA-2) alleging that he sustained an emotional condition due to stress over time and
because his previously accepted hearing loss2 made it difficult to communicate with his colleagues
in the workplace. In associated statements, he alleged a pattern of harassment, discrimination, and
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
Appellant has a previously accepted occupational disease claim for binaural hearing loss under OWCP File No.
xxxxxx200. OWCP granted him a schedule award for 90 percent permanent impairment due to binaural hearing loss.

disparate treatment dating back to June 2001, by supervisor R.D., who isolated appellant from
coworkers, made him create his own work assignments, and find funding for his assigned tasks.
Appellant noted that R.D. was later removed from his post for discriminating against another
employee. He also expressed dissatisfaction with work assignments in June 2008, June 2012, and
May and June 2015. OWCP assigned the claim OWCP File No. xxxxxx814.
By decision dated December 21, 2017, under OWCP File No. xxxxxx814, OWCP denied
the claim finding that appellant had not established the alleged June 2001 supervisory harassment
as factual. It further found that the remainder of his allegations pertained to administrative
functions of the employing establishment not considered to be within the performance of duty.
On January 30, 2018 appellant, through counsel, requested reconsideration and provided
additional evidence. By decision dated March 13, 2018, OWCP denied modification.
On July 12, 2018 appellant, through counsel, requested reconsideration. Counsel provided
July 2017 statements from supervisor R.N. and coworker J.K. asserting that appellant’s hearing
loss adversely affected his work activities.
By decision dated April 16, 2019, OWCP modified its March 13, 2018 decision, finding
that appellant had established that, in June 2001, his supervisor subjected him to “emotional abuse”
and an “isolated environment.” It denied the claim, however, citing to the legal principle that
unsubstantiated allegations of harassment or discrimination were not compensable.
The Board, having duly considered the matter, concludes that the case is not in posture for
decision.3 FECA provides that OWCP shall determine and make findings of fact in making an
award for or against payment of compensation after considering the claim presented by the
employee and after completing such investigation as it considers necessary with respect to the
claim.4 The reasoning behind OWCP’s evaluation should be clear enough for the reader to
understand the precise defect of the claim and the kind of evidence which would overcome it.5
OWCP’s April 16, 2019 decision denied appellant’s claim for failing to establish any
compensable factors of employment. The Board finds, however, that OWCP did not discharge its
responsibility to set forth findings of fact and a clear statement of reasons explaining the
disposition so that he could understand the basis for the decision, as well as the precise defect and
the evidence needed to overcome the denial of his emotional condition claim.6 In its April 16,
2019 decision, OWCP found that appellant had established as factual that, in June 2001, his
supervisor subjected him to emotional abuse and an isolated environment. It then recited the legal
principle that mere perceptions of harassment were not compensable under FECA, but failed
3

N.M., Docket No. 17-0262 (issued July 3, 2017).

4

5 U.S.C. § 8124(a)(2); 20 C.F.R. § 10.125.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See
also G.S., Docket No. 14-1933 (issued November 7, 2014).
6
J.S., Docket No. 18-0513 (issued March 1, 2019); K.J., Docket No. 14-1874 (issued February 26, 2015); J.J.,
Docket No. 11-1958 (issued June 27, 2012).

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explain why that principle applied to accepted emotional abuse.7 It is axiomatic that where the
evidence establishes error or abuse on the part of the employing establishment in what would
otherwise be an administrative matter, coverage will be afforded.8
On remand OWCP shall make appropriate findings of fact regarding the employment
events alleged by appellant.9 Following this and any other further development deemed necessary,
it shall issue a de novo merit decision.10
IT IS HEREBY ORDERED THAT the April 16, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.

7

OWCP’s procedures provide that, when denying an emotional condition claim, it must first determine whether
the events actually occurred. It should then distinguish between those workplace activities and circumstances which
are factors of employment and those which are outside the scope of employment for purposes of compensation by
outlining work-related and nonwork-related elements into three parts. If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth of the matter asserted,
OWCP must base its decision on an analysis of the medical evidence. Supra note 5 at Chapter 2.800.5a (June 2011).
D.H., Docket No. 17-1529 (issued February 14, 2018).
8

L.S., Docket No. 18-1471 (issued February 26, 2020); see O.G., Docket No. 18-0359 (issued August 7, 2019);
D.R., Docket No. 16-0605 (issued October 17, 2016); William H. Fortner, 49 ECAB 324 (1998).
9

A.R., Docket No. 11-1949 (issued April 16, 2012).

10

C.W., Docket No. 14-0693 (issued January 12, 2016).

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Issued: August 7, 2020
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
LaCrosse, WI, Employer
__________________________________________

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

Docket No. 09-583
Issued: September 17, 2009

Case Submitted on the Record

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

JURISDICTION
On December 29, 2008 appellant filed a timely appeal from a December 8, 2008 merit
decision of the Office of Workers’ Compensation Programs denying his emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On September 11, 2008 appellant, then a 29-year-old mail handler, filed an occupational
disease claim alleging that he sustained post-traumatic stress disorder (PTSD) due to “extreme
work[-]related stress.” He attributed the stress to a hostile work environment and discrimination
due to disability. On the claim form, appellant’s supervisor indicated that he told appellant on
September 11, 2008 that he would begin a suspension the following day.

On September 19, 2008 the Office requested that appellant provide a detailed description
of the employment factors that he identified as causing his condition as well as the specific
aspects of his employment that he believed were detrimental to his health. It further requested
that he respond to a series of questions about his job and work duties. The Office also informed
appellant that he should submit a detailed medical report from his attending physician addressing
the relationship of any diagnosed condition to the identified work factors.1
On September 22, 2008 the employing establishment controverted the claim, noting that
appellant filed the claim on the day that he was supposed to begin a 14-day suspension.
The record indicates that on June 5, 2008 appellant received a letter of warning for failing
to maintain a regular work schedule. On August 26, 2008 he received a notice of a 14-day
suspension for failing to follow instructions by working unauthorized overtime. A Step 3
Grievance Settlement dated August 6, 2008 provided that the employing establishment would
submit any documentation given by appellant in support of his employment injury to the Office.
The settlement indicated that it was “made without prejudice to either parties position.” On
September 11, 2008 the employing establishment informed appellant that the dates of his 14-day
suspension would be September 12 to 25, 2008.
By decision dated December 8, 2008, the Office denied appellant’s emotional condition
on the grounds that he did not establish an injury in the performance of duty. It found that he
had not provided a detailed statement outlining the work factors to which he attributed his
condition. The Office further determined that appellant had not submitted any evidence that his
supervisor erred or acted abusively in performing an administrative action.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, an employee must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatrist
disorder, (2) factual evidence identifying an employment factor or incident alleged to have
caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factor is causally related to his or her
emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
1

In a report dated August 5, 2008, Dr. Mark A. Midthun, a Board-certified psychiatrist, diagnosed a generalized
anxiety disorder, depressive disorder and PTSD. He noted that appellant had severe workplace stress. On
September 3, 2008 Dr. Midthun discussed the employing establishment suspending appellant for 14 days in
retaliation for “paperwork that he has filed alleging problems with his workplace.” He diagnosed PTSD and
depression and increased anxiety due to workplace stress. On September 16, 2008 Dr. Midthun noted that appellant
claimed that the employing establishment was a hostile work environment.
2

Vitaliy Y. Matviiv, 57 ECAB 193 (2005); Andy J. Paloukos, 54 ECAB 712 (2003).

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employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.5 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.6 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.7
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of several
employment incidents and conditions. He did not, however, provide a description of the specific
employment factors which he alleged caused his emotional condition. On his claim form,
appellant generally alleged that he experienced a hostile work environment and discrimination
due to his disability. Harassment and discrimination by supervisors and coworkers, if
established as occurring and arising from the performance of work duties, can constitute a
compensable work factor.8 A claimant, however, must substantiate allegations of harassment
and discrimination with probative and reliable evidence.9 Appellant did not specifically describe
any instances that he believed constituted harassment or discrimination and thus has not alleged
or established a compensable work factor.10
3

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

4

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

5

See Michael Ewanichak, 48 ECAB 364 (1997).

6

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

7

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

8

Doretha M. Belnavis, 57 ECAB 311 (2006).

9

Robert Breeden, 57 ECAB 622 (2006).

10

In 2008 appellant received a letter of warning for failing to maintain a regular work schedule and a 14-day
suspension for failing to follow instructions. The Board notes that disciplinary actions are administrative functions
of the employer rather than duties of the employee and, unless the evidence discloses error or abuse on the part of
the employing establishment, not compensable employment factors. Jeral R. Gray, 57 ECAB 611 (2006). A
grievance settled on August 6, 2008 provided that the employing establishment would submit appellant’s medical
documentation supporting his injury to the Office. The settlement was made without a finding of fault by the
employing establishment and thus does not support error or abuse in an administrative action. See Robert Breeden,
supra note 9.

3

The Office advised appellant in its September 19, 2008 letter that he should submit a
detailed factual statement describing the employment incidents alleged to have caused his
emotional condition; however, he did not submit such a statement. As noted, his burden of proof
requires the submission of a detailed description of the alleged employment incident.11
Appellant failed to specifically identify the factors to which he attributed his claimed condition,
and thus has failed to establish an essential element of his claim.
On appeal appellant contends that the evidence is sufficient to establish a hostile work
environment. As discussed, however, he did not submit a detailed description of the work
incidents that he believed established harassment or discrimination by the employing
establishment. Consequently, appellant has not met his burden of proof.12
Appellant additionally notes that he has coworkers who will corroborate his symptoms.
He has the burden of proof, however, to submit evidence supporting that he sustained an
emotional condition in the performance of duty.13
Appellant further contends that the medical evidence is sufficient to show that work
caused his emotional condition. It is well established, however, that in an emotional condition
claim a claimant must first establish a compensable work factor before the medical evidence is
considered.14 As appellant has not established a compensable work factor, however, the Board
will not address the medical evidence.15
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty.

11

Robert Breeden, supra note 9; David Apgar, 57 ECAB 137 (2005).

12

Id.

13

See Pamela D. Casey, 57 ECAB 260 (2005); Doretha M. Belnavis, supra note 8.

14

Richard Yadron, 57 ECAB 207 (2005).

15

See Lori A. Facey, 55 ECAB 217 (2004); Margaret S. Krzycki, 43 ECAB 496 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 8, 2008 is affirmed.
Issued: September 17, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Appearances:
Irving Nelson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1589
Issued: February 5, 2008

Case Submitted on the Record

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

JURISDICTION
On May 23, 2007 appellant filed a timely appeal from a February 26, 2007 merit decision
of the Office of Workers’ Compensation Programs which affirmed the denial of his recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this claim.
ISSUE
The issue is whether appellant sustained a recurrence of disability on and after June 7,
2002 causally related to his accepted employment injury of March 6, 2002.
FACTUAL HISTORY
On March 15, 2002 appellant, a 41-year-old distribution clerk, filed a claim alleging that
on March 6, 2002 he injured his back while picking up tubs of mail weighing approximately 50
pounds. He stopped work on March 8, 2002. Appellant returned to light-duty work on May 7,
2002 and worked intermittently through June 6, 2002. He stopped work on June 7, 2002 after
working a partial day. Appellant retired on disability retirement effective February 10, 2003.

In an April 4, 2002 report, Dr. Stanley K. Saunders, a Board-certified family practitioner,
noted seeing appellant on March 13, 2002 for back pain. He stated that a March 27, 2002
magnetic resonance imaging (MRI) scan revealed a possible L1 compression deformity and an
L4-5 disc protrusion. Dr. Saunders opined that appellant had a “workers’ compensation injury
with a muscular component and possibly a small herniated disc in addition with compression
fracture.” The March 27, 2002 MRI scan noted a bone marrow finding for which metastatic
disease could not be ruled out. The report also noted a “probable recent” compression deformity
at L1 and a small protrusion at L4-5 without stenosis or foraminal narrowing.
By decision dated May 2, 2002, the Office denied appellant’s claim on the grounds that
the medical evidence was insufficient. On February 11, 2003 an Office hearing representative,
remanded the case to the Office for further medical development.
On April 15, 2003 the Office referred appellant to Dr. Norman L. Pollak, a Boardcertified orthopedic surgeon, for a second opinion. In a May 9, 2003 report, he noted that the
medical records indicated diagnosis of lumbar strain. A March 27, 2002 magnetic resonance
imaging (MRI) scan suggested a compression fracture of L1. Dr. Pollak noted that
Dr. Kornblum’s August 27, 2002 progress note indicated multiple compression fractures from
T11 to L5 and suggested treatment of vertebroplasties, which involved injection of cement into
the vertebral bodies to prevent further collapse. He set forth his findings and concluded that
appellant had sustained a sprain to his lower back while working on March 6, 2002. Appellant
continued to experience pain and was diagnosed with multiple myeloma throughout the lower
thoracic and lumbar spine. He underwent chemotherapy and radiation therapy as well as
vertebroplasties. Dr. Pollak found that appellant’s treatment for multiple myeloma and his
continued back symptoms were not residuals of the March 6, 2001 work injury, but was
secondary to the underlying myeloma condition. He advised that the multiple myeloma
condition was preexisting and had progressed into multiple vertebral collapses or compression
fractures and were not the result of the work injury. Dr. Pollak opined that appellant could not
return to his regular duties and recommended a functional capacity evaluation. The Office
requested that Dr. Pollak clarify his opinion. In a May 28, 2004 report, he stated that any
symptoms from appellant’s March 6, 2002 lumbar sprain would only have been of short-term
significance. Dr. Pollak reiterated that appellant’s ongoing complaints were due to his
underlying condition of multiple myeloma. He explained that the multiple compression fractures
had occurred secondary to the multiple myeloma.
On June 9, 2003 the Office accepted appellant’s claim for a low back strain on the basis
of Dr. Pollak’s opinion.
On July 8, 2003 appellant filed a Form CA-7 claiming wage loss for total disability
beginning June 7, 2002. The Office adjudicated the claim as one for a recurrence of disability.
On July 16, 2003 the Office advised appellant that the evidence was insufficient to
establish that his disability of June 7, 2002 was causally related to the accepted work injury. The
Office requested further factual and medical information, including a physician’s rationalized
opinion addressing how his current condition was due to the work-related injury

2

Appellant submitted an August 13, 2003 statement. A June 6, 2002 disability slip from
Providence Hospital advised that he was treated for lumbar disc disease. It stated that appellant
was unable to work on June 6, 2002 but could return to work on June 8, 2002. In an August 27,
2002 progress report, Dr. Martin B. Kornblum, an attending Board-certified orthopedic surgeon,
noted the history of injury. He stated that appellant was discovered to have multiple myeloma.
Dr. Kornblum noted that appellant was admitted to the hospital for an acute exacerbation of pain
and was currently undergoing treatment for myeloma. He diagnosed multiple myeloma of the
lumbar spine with compression fractures at T11, L1 and L2. Dr. Kornblum opined that
appellant’s compression fractures of his back were secondary to multiple myeloma of the lumbar
spine. He reported that appellant’s pain was stable. Dr. Kornblum provided restrictions on
lifting and bending.
In a September 3, 2002 report, Dr. Stanley K. Saunders, a Board-certified family
practitioner, advised that appellant was originally taken off work on June 8, 2002 for severe
lumbosacral pain. In his reports of November 3, 2002 and August 5, 2003, he provided a
summary of appellant’s clinical history and the dates when he examined him. Dr. Saunders
concluded that appellant had a workers’ compensation injury with a muscular component
complicated by multiple myeloma.
By decision dated August 25, 2003, the Office denied the claim for compensation
beginning June 7, 2002 on the basis that the disability was not found to be causally related to the
accepted low back strain of March 6, 2002.
Appellant requested an oral hearing, which was held on April 29, 2004. The Office
received progress reports from Dr. Kornblum dated September 11, 2003 to April 22, 2004. They
addressed the status of appellant’s multiple thoracolumbar compression fractures and multiple
myeloma. On May 18, 2004 Dr. Gary Chodoroff, a Board-certified physiatrist, noted the history
of injury and appellant’s clinical course. Appellant was found to have multiple myeloma in
July 9, 2002 and compressed vertebrae in August 2002.
He was status post seven
vertebroplasties. Dr. Chodoroff noted that appellant’s symptoms began with the March 6, 2002
work incident and opined that appellant was not capable of working.
By decision dated July 20, 2004, the Office hearing representative affirmed the
August 25, 2003 decision. The Office hearing representative determined that the medical
evidence did not establish that appellant’s myeloma or thoracolumbar compression fractures
were due to the March 6, 2002 work injury or that appellant’s work stoppage of June 7, 2002 was
due to the accepted low back strain.
On December 7, 2004 appellant requested reconsideration. An October 9, 2004
statement from Clarence Jenkins, a retired manager of the priority mail center, advised that
appellant’s work-related injury caused appellant hardship as well as a loss of services and
leadership to the employing establishment. Progress notes from Dr. Kornblum dated July 15,
August 10 and November 23, 2004 were submitted. He opined that appellant was permanently
disabled and that his work-related injury was the major initial event leading to his disability.
Dr. Kornblum stated that appellant was highly functional up to the point where he had the workrelated lumbar strain in March 2002, which eventually led to a permanent back condition. He

3

noted that, although appellant had myeloma, the work injury caused the cascade of spinal
fractures as appellant never recovered from the initial injury. Although appellant’s spinal
fractures were discovered several months after the March 2002 work injury, the initial injury
abused total disability.
In a November 18, 2004 report, Dr. Saunders addressed the relationship between
appellant’s June 6 and 10, 2002 visits for severe back pain and the March 6, 2002 work injury.
On June 6, 2002 he noted the history of appellant’s acute back injury at work and explained that
his back spasms were severe enough to keep him off work. Dr. Saunders referred him to a
specialist which supported a relationship between the original injury and his increased pain
following the injury. On June 10, 2002 his working diagnosis was “workers’ compensation back
injury” and appellant was taken off work. Dr. Saunders stated that that it was necessary for him
to stop work on June 6, 2002 due to pain and the March 6, 2002 injury. He concluded that
appellant was functioning well at the time of the March 6, 2002 injury which led to his disability.
Dr. Saunders explained that, although the multiple myeloma caused the spinal fractures, which
necessitated vertebroplasty, it was the March 6, 2002 workers’ compensation back injury that
disabled him.
By decision dated December 20, 2004, the Office denied modification of the July 20,
2004 decision.
Appellant requested reconsideration. In reports dated January 20 and September 22,
2005, Dr. Kornblum advised that appellant’s residual back pain began with his work-related
injury. Appellant tried to go back to work briefly without success. Dr. Kornblum stated that
appellant last worked June 6, 2002 and had multiple spinal fractures. He stated that appellant
was fairly stable, surgically, but was permanently disabled as he was at risk for further fractures
with work. Dr. Kornblum opined that this was a work-related injury. He explained that the
injury occurred at work and appellant developed fractures as a result of the work-related injury.
Dr. Kornblum advised that, while the multiple myeloma was preexisting, the spinal fractures
were not there prior to his work-related injury. But for the work-related injury, appellant would
not have sustained the fractures. He had no new fractures since he stopped work. Dr. Kornblum
further opined that appellant was disabled from work as a result the spinal fractures.
By decision dated December 13, 2005, the Office denied modification of its
December 20, 2004 decision.
On June 16, 2006 appellant requested reconsideration. In a May 30, 2006 report,
Dr. Kornblum reiterated that appellant’s March 6, 2002 work injury caused the multiple spine
fractures. He noted that, while the multiple myeloma condition was preexisting and was a
contributing factor in that it weakened the spine to some extent, it was not the primary cause of
the spinal fractures. Dr. Kornblum opined that, but for the lifting injury, appellant would not
have fractured multiple vertebrae in the manner that developed. He believed the fractures were
present at the time of his symptoms in March and continued until they were eventually diagnosed
and treated. Secondary to the multiple vertebral fractures, appellant would not have been able to
perform his regular duties as it caused severe pain and difficulty in handling his own body
weight, difficulty in allowing him to stand up straight or sit for long periods, walk, bend, stoop,

4

reach or lift. Prior to the March 6, 2002 injury, he had no problems performing his duties and
had no pain or postural problems.
By decision dated February 26, 2007, the Office denied modification of its December 13,
2005 decision, finding that appellant had not established that his disability commencing June 7,
2002 was related to his March 6, 2002 injury.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of the reliable, probative and substantial evidence a recurrence of disability. As part of
this burden, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.1
A recurrence of disability is defined as the inability to work caused by a spontaneous
change in a medical condition which results from a previous injury or illness without an
intervening injury or new exposure in the work environment that caused the illness. This term
also means an inability to work when a light-duty assignment made specifically to accommodate
an employee’s physical limitations due to his or her work-related injury or illness is withdrawn
(except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties
or a reduction-in-force), or when the physical requirements of such an assignment are altered so
that they exceed his or her established physical limitations.2
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the subsequent disability for which compensation is claimed is causally
related to the accepted injury.3 This burden includes the necessity of furnishing evidence from a
qualified physician who, on the basis of a complete and accurate factual and medical history,
concludes that the condition is causally related to the employment injury.4 Moreover, the
physician’s conclusion must be supported by sound medical reasoning.5 In addition, the medical
evidence must demonstrate that the claimed recurrence was caused, precipitated, accelerated or
aggravated by the accepted injury.6 In this regard, medical evidence of bridging symptoms
1

Terry Hedman, 38 ECAB 222 (1986).

2

See 20 C.F.R. § 10.5(x).

3

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988).

4

Section 10.104(a)(b) of the Code of Federal Regulations provides that, when an employee has received medical
care as a result of the recurrence, he or she should arrange for the attending physician to submit a detailed medical
report. The physician’s report should include the physician’s opinion with medical reasons regarding the causal
relationship between the employee’s condition and the original injury, any work limitations or restrictions and the
prognosis. 20 C.F.R. § 10.104.
5

See Robert H. St. Onge, 43 ECAB 1169 (1992).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

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between the recurrence and the accepted injury must support the physician’s conclusion of a
causal relationship.7 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.8
ANALYSIS
The Office accepted that appellant sustained a low back strain as a result of his March 6,
2002 work injury. The record reflects that he was able to resume light-duty work following his
injury but later became disabled after being diagnosed with multiple myeloma and spinal
compression fractures were detected. Appellant stopped work on June 7, 2002 and claimed total
disability beginning that day. The Office developed the matter as claim for a recurrence of
disability on and after June 7, 2002.9 The Office advised appellant of the medical evidence
needed to establish his claim. However, he did not submit sufficient reasoned medical evidence
establishing that his claimed disability was due to his March 6, 2002 low back strain.10 The
Board also notes that there is no evidence showing a change in the nature and extent of the lightduty job requirements. There is no evidence that appropriate light-duty work was not made
available.
Appellant submitted a statement from Clarence Jenkins attesting to the effects of
appellant’s work injury. However, the matter of the residuals of a work injury is a medical
question and lay persons are not competent to render a medical opinion.11 Thus, Mr. Jenkins’
statement is irrelevant to appellant’s claim. The June 6, 2002 disability slip from Providence
Hospital advised that appellant was treated for lumbar disc disease and was unable to work
June 6 and 7, 2002. However, there was no indication from a physician that he stopped work
due to the accepted low back strain. In his May 18, 2004 report, Dr. Chodoroff noted that
appellant’s symptoms began with the March 6, 2002 work injury and opined that he was

7

For the importance of bridging information in establishing a claim for a recurrence of disability, see Robert H.
St. Onge, supra note 5; Shirloyn J. Holmes, 39 ECAB 938 (1988); Richard McBride, 37 ECAB 748 (1986).
8

See Ricky S. Storms, 52 ECAB 349 (2001).

9

Although appellant did not specifically file a claim for a recurrence of disability (Form CA-2a), Office
regulations defining a recurrence of disability are applicable to this situation and the Office properly treated it as
such. See 20 C.F.R. § 10.5(x). The Board notes that if appellant is claiming that the work he performed after his
return to work on May 7, 2002 aggravated his preexisting condition, this would form the basis for a claim for a new
injury. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997).
10

Although appellant asserts that other conditions, such as compression fractures, were caused by his
employment injury, the Office only accepted the claim for a low back strain. See Jaja K. Asaramo, 55 ECAB 200
(2004) (where an employee claims that a condition not accepted or approved by the Office was due to an
employment injury, he or she bears the burden of proof to establish that the condition is causally related to the
employment injury).
11

See id. at 206.

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disabled. However, his report is insufficient to establish appellant’s claim as he did not
specifically address the cause of appellant’s disability.12
Appellant submitted numerous progress notes and medical reports from Dr. Kornblum.
In an August 27, 2002 progress note, Dr. Kornblum noted the history of injury and opined that
his spinal compression fractures were secondary to multiple myeloma. However, he offered no
opinion regarding appellant’s work stoppage of June 6, 2002 or an opinion regarding the
relationship between his current condition and the accepted work-related injury of a lower back
strain. While Dr. Kornblum continued to report on the status of appellant’s condition and
ongoing treatment, it was not until his report of August 10, 2004 that he opined that there was a
connection between appellant’s employment and the multiple fractures of the spine.
In his August 10, 2004 report, Dr. Kornblum opined that appellant’s work injury led to
permanent disability. He stated that the work injury caused appellant’s cascade of spinal
fractures as he never recovered from the work-related injury. Dr. Kornblum, however, did not
explain how appellant’s accepted low back strain would cause or contribute to his worsening
symptomology or establish that his compression fractures and disability were causally related to
his accepted condition and not to the preexisting myeloma condition. In his January 20 and
September 22, 2005 reports and May 30, 2006 report, he acknowledged that the multiple
myeloma condition was preexisting and opined that, but for the work-related injury, appellant
would not have had the spinal fractures and his subsequent work stoppage. In Dr. Kornblum’s
January 20 and September 22, 2005 report, he stated that the fractures were not there prior to his
work-related injury and there had been no new fractures since appellant stopped work. In his
May 30, 2006 report, he opined that, but for the work injury, appellant would not have fractured
the multiple vertebra in the manner that developed. Dr. Kornblum’s opinion on causal
relationship, however, is of little probative value as it contains a conclusory statement on causal
relationship.13 In his reports, he failed to sufficiently explain how the March 6, 2002 work injury
resulted in the diagnosed spinal fractures. While Dr. Kornblum stated in his May 30, 2006 report
that he believed that the spinal fractures were present at the time of the March 6, 2002 work
injury the most contemporaneous medical evidence, a March 27, 2002 MRI scan report, notes
only a “probable recent” compression deformity at L1. Additionally, he failed to provide an
opinion in his reports as to how appellant’s condition worsened such that he was no longer able
to perform his limited-duty work. The mere fact that appellant did not have problems in
performing his duties or have the pain and postural problems prior to his work-related injury or
experienced new fractures since his work stoppage, is not sufficient to establish a causal
relationship to the work injury.14 For these reasons, Dr. Kornblum’s reports are insufficient to
establish appellant’s claim.
Appellant also submitted numerous reports from Dr. Saunders. In a September 3, 2002
report, Dr. Saunders indicated that appellant was taken off work June 8, 2002 for severe
12

Michael E. Smith, 50 ECAB 313 (1999) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).
13

See Albert C. Brown, 52 ECAB 152 (2000).

14

See Dennis M. Mascarenas, 49 ECAB 215, 218 (1997); Manuel Garcia, 37 ECAB 767 (1986).

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lumbosacral pain. In reports of November 3, 2002 and August 5, 2004, he concluded that
appellant had a workers’ compensation injury complicated by multiple myeloma. Dr. Saunders,
however, does not provide a reasoned explanation regarding the relationship between appellant’s
current condition and the March 6, 2002 work injury, or address appellant’s work stoppage of
June 6, 2002. While, his November 18, 2004 report also addressed causal relationship, stating
that appellant was taken off work as a result of failure to improve from his “workers’
compensation back injury” and that his subsequent referral to a specialist was indicative of a
relationship between the work injury and appellant’s exacerbation of pain. However, to establish
a causal relationship between the condition, as well as any attendant disability claimed, and the
employment injury, there must be rationalized medical evidence based on a complete medical
and factual background supporting such a causal relationship.15 Dr. Saunders reference to a
“workers’ compensation injury,” subsequent referral to a specialist and opinion that the workers’
compensation injury rendered appellant disabled does not establish causal relationship as no
explanation is offered as to the nexus with the accepted low back strain. There is no discussion
on how appellant’s accepted strain would cause or contribute to his worsening symptomology or
establish that his exacerbation of pain and disability was causally related to his accepted
condition. Thus, his reports are insufficient to establish appellant’s claim.
Thus, the medical reports from appellant’s treating physicians do not offer a rationalized
medical opinion establishing that appellant’s disability beginning June 7, 2002 is due to an
employment-related condition.
Dr. Pollak, an Office referral physician, stated in April 9 and May 28, 2003 reports that
appellant’s disability beginning June 7, 2002 was due to his underlying multiple myeloma
condition which led to his vertebral collapses and compression fractures and caused his disability
from work after he returned to light duty following his March 6, 2002 work injury. Dr. Pollak
was provided with appellant’s entire medical file and presented a well-reasoned explanation for
his opinion that the myeloma and compression fracture conditions along with the resulting
disability from work were not causally related to the March 6, 2002 low back strain.
Appellant has not submitted sufficient medical evidence to establish that his disability
beginning June 7, 2002, was a result of his accepted employment injury.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability or a medical condition on and after June 7, 2002 causally
related to his accepted employment injury of March 6, 2002.

15

John D. Jackson, 55 ECAB 465 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the February 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2008
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.F., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Fort Meyers, VA,
Employer
__________________________________________

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

Docket No. 12-273
Issued: June 19, 2012

Case Submitted on the Record

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

JURISDICTION
On November 18, 2011 appellant filed a timely appeal from August 9 and November 3,
2011 merit decisions 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 his burden of proof to establish that his back condition
was caused by the accepted April 6, 2011 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 7, 2011 appellant, then a 46-year-old meatcutter, filed a traumatic injury claim
alleging that he sustained a lower back sprain as a result of operating a meat cutting band saw on
April 6, 2011.
Appellant submitted an April 8, 2011 note signed by Dr. Edward E. Wilson, a Boardcertified physician in emergency medicine. Dr. Wilson reported that appellant had an injury to
the lower back “from [April 8 to 12, 2011].”
Dr. Thu B. Nguyen, Board-certified in internal medicine, reported on May 4, 2011 that
appellant could return to work on May 5, 2011 with restrictions. He diagnosed low back pain
due to an injury at work on April 8, 2011.
Michelle Jackson, a physical therapist, reported on June 16, 2011 that appellant had
received treatment on May 9, 2011 for back pain.
In a July 8, 2011 letter, OWCP notified appellant of the deficiencies in his claim and
requested that he submit a medical report, with a physician’s opinion supported by rationale, as
to how the reported work incident caused or aggravated his claimed back condition.
A magnetic resonance imaging (MRI) scan of July 18, 2011 was received from
Dr. Andrew W. Loftus, a Board-certified radiologist, who stated that it showed minimal
broad-based annular bulge at T11-12 and L5-S1 and that there was no focal disc protrusion or
herniation at any level.
Appellant also submitted a July 29, 2011 medical report from Dr. John Ergener, a Boardcertified physician in orthopedic surgery, who diagnosed sprain or strain of the lumbar region,
sciatica and stated the “place of injury” was “industrial place.”
By decision dated August 9, 2011, OWCP denied appellant’s claim finding that he failed
to establish that a low back condition causally related to the accepted April 6, 2011 incident.
Appellant requested reconsideration on August 18, 2011 and submitted an August 12,
2011 treatment report from Dr. Ergener, who reiterated that appellant had a sprain or strain of the
lumbar region, sciatica and low back pain. Dr. Ergener indicated generally that appellant’s back
injury was sustained at work.
By decision dated November 3, 2011, OWCP affirmed the August 9, 2011 decision.2

2

The letter accompanying the November 3, 2011 decision stated that a merit review had been conducted. Appeal
rights consistent with a merit review accompanied the decision. However the decision itself contained language
indicating that merit review was denied. The Board finds that the decision was a merit review of the claim.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his 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, that an injury was sustained in the
performance of duty as alleged and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.5 The employee must also submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is medical evidence which includes a physician’s
opinion on the issue of whether there is a causal relationship between the claimant’s diagnosed
condition and the implicated employment factors. The opinion of the physician must be based
on a complete factual and medical background, 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 compensable employment factors identified by the
claimant.7
ANALYSIS
OWCP has accepted that the meat cutting incident occurred as alleged on April 6, 2011.
The Board finds that appellant has submitted insufficient medical evidence to establish a low
back condition caused by this work incident.
Appellant submitted form notes from Dr. Wilson and Dr. Nguyen in support of his claim.
Neither physician provided a complete medical history or history of injury. Both indicated that
the alleged injury occurred on April 8, 2011, rather than April 6, 2011. While Dr. Nguyen
generally stated that the injury had occurred at work, he did not relate any details as to
appellant’s work at a meat saw or how this caused or contributed to the claimed back condition.
As noted, to be of probative value, a physician’s opinion must be based upon a complete medical
and factual background. Furthermore, appellant’s condition was stated as “lower back pain.”

3

5 U.S.C. §§ 8101-8193.

4

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

6

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

7

D.G., 59 ECAB 734 (2008); G.T., 59 ECAB 447 (2008); I.J., 59 ECAB 408 (2008).

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The Board has held that pain is generally considered a symptom, not a firm medical diagnosis.8
As such, these notes are of diminished probative value.
OWCP also received an MRI scan report from Dr. Loftus, who diagnosed a minimal
bulge at T11-12 and L5-S1, but he provided no history of injury or any opinion regarding the
cause of this condition.
5 U.S.C. § 8101(2) of FECA provides that the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. A nurse, physician’s
assistant or physical and occupational therapists are not physicians as defined by FECA. Their
opinions regarding diagnosis and causal relationship are of no probative medical value.9 The
medical note from Ms. Jackson is of no probative value, as she is a physical therapist, not a
physician within the meaning of FECA.
While Dr. Ergener provided a diagnosis of appellant’s condition as sprain or strain of the
low back with sciatica and indicated that the injury was sustained at work, he did not provide a
complete or accurate history of how the injury occurred or provide any medical rationale
explaining how appellant’s employment incident physiologically caused the diagnosed condition.
The Board has held that medical reports lacking rationale regarding causal relationship are of
little probative value.10
Appellant did not submit sufficient medical evidence from a physician addressing how
his back condition was causally related to the employment incident supported with adequate
medical reasoning. He did not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a back condition
caused by his employment.

8

J.W., Docket No. 11-1475 (issued December 7, 2011); Robert Broome, 55 ECAB 339, 342 (2004).

9

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

10

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal
relationship have little probative value).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 3 and August 9, 2011 are affirmed.
Issued: June 19, 2012
Washington, DC

Alec J. Koromilas, 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
__________________________________________
G.U., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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Appearances:
Geraldine Manzo, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1705
Issued: June 5, 2015

Case Submitted on the Record

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

JURISDICTION
On July 4, 2014 appellant filed a timely appeal from the January 16, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly found that appellant forfeited her right to
compensation for the period November 30, 2009 to August 15, 2011 because she knowingly
1
2

5 U.S.C. §§ 8101-8193.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
501.3(e)-(f). One hundred and eighty days from January 16, 2014, the date of OWCP’s last decision, was
July 15, 2014. Since using August 4, 2014, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is July 4, 2014, rendering the appeal timely filed. See 20 C.F.R. 501.3(f)(1).

failed to report her employment activities for this period; and (2) whether it properly found an
overpayment in the amount of $72,782.49.
FACTUAL HISTORY
On October 5, 1999 appellant, then a 28-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained an injury due to the repetitive work duties she
performed. OWCP accepted that appellant sustained a right wrist strain, bilateral tendinitis, and
an aggravation of bilateral Keinbock’s disease.
On January 30, 2002 appellant underwent a left lunate graft and carpectomy and, on
April 28, 2003, she underwent a left proximal carpectomy. On December 5, 2003 appellant
underwent a lunate graft on the right. These procedures were authorized by OWCP. Appellant
stopped work on April 28, 2003 and returned to work on a part-time basis on June 9, 2003. She
stopped working completely on December 4, 2003 and received total disability compensation on
the periodic rolls beginning December 28, 2003.
On February 1, 2005 OWCP granted appellant a schedule award for 10 percent
permanent impairment of her right arm and 33 percent permanent impairment of her left arm.
The award ran for 134.16 weeks from October 31, 2004 to May 28, 2007. After the schedule
award stopped running, appellant received disability compensation on the daily rolls beginning
November 30, 2009. She later returned to the periodic rolls.
By decision dated February 24, 2012, OWCP determined that, after failing to participate
in vocational rehabilitation efforts, appellant had the wage-earning capacity of a customer
complaint clerk and it reduced her compensation to reflect this wage-earning capacity. In a
September 20, 2012 decision, an OWCP hearing representative affirmed OWCP’s February 24,
2012 decision.
Appellant completed and signed EN1032 forms on May 24, 2010 and August 15, 2011.
She signed the forms and marked “no” to attest that she had not worked for any employer and
was not self-employed or involved in any business enterprise for the 15 months prior to the date
that she signed each form.3 The EN1032 forms required appellant to report all self-employment
or involvement in business enterprises. These included but were not limited to farming, sales
work, operating a business, including a store or a restaurant, and providing services in exchange
for money, goods, or other services. The kinds of services appellant was required to report
included keeping books and records, or managing and/or overseeing a business of any kind,
including a family business.
The EN1032 forms further provided that, even if appellant’s activities were part time or
intermittent, she was required to report them. Appellant had to report as her “rate of pay” what
she was paid, including the value of such things as housing, meals, clothing, and reimbursed
expenses, if they were received as part of her employment. She was required to report any work
or ownership interest in any business enterprise, even if the business lost money or if profits or
income were reinvested or paid to others. If appellant performed any duties in any business
3

Appellant also responded “no” on both to the question about whether she was performing volunteer work.

2

enterprise for which she was not paid, she was required to show as rate of pay what it would
have cost the employer or organization to hire someone to perform the work or duties she did,
even if her work was for herself or a family member or relative.
In a September 21, 2012 report, the Office of Inspector General (OIG) for the employing
establishment found after an investigation in August 2011 that appellant was actively involved in
a business. The report contained evidence showing that appellant worked at a Quiznos sandwich
restaurant in Antioch, CA, ostensibly as a manager, from the time of the opening through around
the time that the report was completed. Internet advertisements from May and June 2008 stated
that the Quiznos restaurant was a family-owned franchise run by appellant and her sister.
Appellant’s sister was interviewed by an OIG agent in May 2012 and indicated that appellant
worked as a manager at the Quiznos restaurant and would work a few hours, five to six times per
week. An employee at the Quiznos restaurant was questioned by an OIG agent in May 2012 and
reported that appellant tended to come in on a daily basis at 11:00 a.m. to check on the operation,
fill out forms, and work on the computer. Appellant occasionally delivered party trays. The
employee, who had worked at the restaurant for five years, stated that she considered appellant to
be the daytime manager of the restaurant and appellant’s sister to be the night manager.
The September 21, 2012 investigative report of the OIG includes a business card which
listed appellant as “owner/manager” of the restaurant. It also contains records of surveillance of
appellant between late 2011 and early 2012. Appellant was observed entering through the
employee’s entrance of the restaurant, engaging with customers from behind the counter, and
leaving the premises with trays of food for the purpose of delivery to customers. The OIG report
also notes that on February 16, 2011 appellant signed a City of Antioch Business License
Renewal. In a May 2012 interview, appellant stated to an OIG agent that she watched the
Quiznos restaurant to make sure everything was going okay and oversaw the employees. She
indicated that she had been at the Quiznos restaurant since it opened in 2007. Appellant stated
that it was a family business owned by her parents, but that she did not have a title or receive
pay. She stated that she sometimes handed customers their orders and delivered sandwiches two
or three times a day when she was at the Quiznos restaurant.
By decision dated June 20, 2013, OWCP determined that appellant’s entitlement to
compensation paid during the period November 30, 2009 to August 15, 2011, which totaled
$72,782.49, was forfeited. It determined that appellant knowingly failed to report her work
activities at a Quiznos restaurant on the two EN1032 forms that she signed on May 24, 2010 and
August 15, 2011. Each form covered a reporting period of 15 months prior to the signing of each
form.4 An investigative memorandum produced by the OIG for the employing establishment
showed that appellant had engaged in work activity during this period which she should have
reported.
In a June 20, 2013 letter, OWCP advised appellant that it had made a preliminary
determination that she was overpaid $72,782.49 for the period November 30, 2009 to August 15,
2011 and was at fault in the creation of the overpayment because she knowingly accepted
4

OWCP noted that the May 24, 2010 Form EN1032 actually covered a period that began prior to November 30,
2009, but that the period of forfeiture was declared to November 30, 2009 to August 15, 2011 because appellant did
not begin to receive disability compensation from OWCP until November 30, 2009.

3

compensation to which she was not entitled. Appellant disagreed with the preliminary
overpayment decision and requested a conference with OWCP which was held on
August 13, 2013.
By decision dated September 12, 2013, OWCP finalized the overpayment determination
and determined that $300.00 should be deducted from appellant’s continuing periodic
compensation payments.
Appellant disagreed with the June 20, 2013 forfeiture decision and requested a hearing
with an OWCP hearing representative. At the November 13, 2013 hearing, it was argued that
appellant had not made an incorrect statement on a Form EN1032 because appellant did not
know that she had made an incorrect statement until after speaking with a claims examiner.
Appellant did not own the restaurant where she was alleged to have worked. Regarding the
business license which reflected her as the owner, she explained that she only signed the
documents for her sister. Appellant stated that appellant’s father was the owner of the restaurant
and that she often interpreted for him. It was explained that the Form EN1032 requested that all
employment activities be reported even if pay was not received. It was argued that appellant had
legitimately answered “no” on the EN1032 forms with respect to work for an employer, selfemployment, and involvement in any business enterprise. Appellant believed, given the manner
in which the forms were written, that she did not have to report work activity if, as in her case,
she did not earn any income while working. She allegedly completed the EN1032 forms in an
appropriate manner based on the way the EN1032 forms were written.
In a decision dated January 16, 2014, an OWCP hearing representative finalized the
June 20, 2013 preliminary finding that she had forfeited her right to compensation for the period
November 30, 2009 to August 15, 2011. He found that appellant knowingly failed to report
work activities as required by the EN1032 forms she completed which covered the period of
forfeiture.
LEGAL PRECEDENT
Section 8106(b) of FECA5 provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.... An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this
subsection, if already paid, shall be recovered by a deduction from the

5

5 U.S.C. § 8106(b).

4

compensation payable to the employee or otherwise recovered under
section 8129 of this title, unless recovery is waived under that section.”6
An employee can only be subjected to the forfeiture provision of 5 U.S.C. § 8106(b) if he
or she “knowingly” omitted or understated earnings. It is not enough to merely establish that
there were unreported earnings. OWCP procedures recognize that forfeiture is a penalty,7 and,
as a penalty provision, it must be narrowly construed.8 In its regulations, “knowingly” is defined
as: “with knowledge, consciously, willfully or intentionally.”9 To meet this burden, OWCP is
required to examine closely appellant’s activities and statements. It may meet this burden
without an admission by an employee if the circumstances of the case establish that he or she
failed to reveal fully and truthfully the full extent of his or her employment activities and
earnings.10
Section 10.5(g) of OWCP regulations define earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deductions and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”11
ANALYSIS
The Board finds that OWCP properly found that appellant forfeited her right to
compensation from November 30, 2009 to August 15, 2011. In the present case, the record
establishes that appellant knowingly omitted employment activities on EN1032 forms covering
the period November 30, 2009 to August 15, 2011. In these forms, signed on May 24, 2010 and
August 15, 2011, OWCP notified appellant of her responsibility to complete the forms and
6

While section 8106(b)(2) refers only to partially disabled employees, the Board has held that the test for
determining partial disability is whether, for the period under consideration, the employee was in fact either totally
disabled or merely partially disabled, and not whether she received compensation for that period for total or partial
loss of wage-earning capacity. Ronald H. Ripple, 24 ECAB 254, 260 (1973). The Board explained that a totally
disabled employee normally would not have any employment earnings and therefore a statutory provision about
such earnings would be meaningless. Id. at 260.
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Forfeiture, Chapter 2.1402.8 (May 2012).

8

Christine P. Burgess, 43 ECAB 449 (1992).

9

20 C.F.R. § 10.5(n); see Anthony A. Nobile, 44 ECAB 268 (1992).

10

Terry A. Geer, 51 ECAB 168 (1999).

11

20 C.F.R. § 10.5(g); see Monroe E. Hartzog, 40 ECAB 329 (1988).

5

provide relevant information concerning her employment status and earnings during the periods
covered by the forms.
The record reflects that appellant performed substantial unreported work activity during
the period of the forfeiture. In a September 21, 2012 report, the OIG for the employing
establishment indicated that an investigation established that appellant was actively involved in a
business. The report contained substantial evidence showing that appellant worked at a Quiznos
sandwich restaurant in Antioch, CA, ostensibly as a manager, from the time of the opening
through around the time that the report was completed. In a May 2012 interview, appellant
stated to an OIG agent that she watched the Quiznos restaurant to make sure everything was
going okay and that she oversaw the employees. She indicated that she had been at the Quiznos
restaurant since the place opened in 2007. Appellant stated that she sometimes handed
customers their orders and delivered sandwiches two or three times a day when she was at the
Quiznos restaurant.
The EN1032 forms signed by appellant used such terms as “business” and “enterprise” to
explain the obligation for reporting all forms of employment, self-employment, and earnings.
They noted that she was required to report involvement in a business enterprise including
working in a store or a restaurant. The explicit language of the EN1032 forms advised appellant
that the nature of her work at Quiznos would require her to report such employment activities on
the forms. Appellant’s signing of strongly-worded certification clauses on the EN1032 forms
further shows that she was aware of the materiality of the failure to report her employment.
Under these circumstances, the Board concludes that appellant “knowingly” omitted her
earnings under section 8106(b)(2) of FECA by failing to report her employment activities at the
Quiznos restaurant on the applicable EN1032 forms covering the period November 30, 2009 to
August 15, 2011.12
At a hearing with an OWCP hearing representative, appellant’s
representative argued that appellant legitimately answered “no” on the EN1032 forms with
respect to work for an employer, self-employment, and involvement in any business enterprise
because she believed, given the manner in which the forms were written, that she did not have to
report work activity if, as in her case, she did not earn any income while working. On appeal,
appellant offered a similar argument for not reporting her work activity. However, the forms
require that, if she was not paid, appellant was required to show as rate of pay what it would
have cost the employer or organization to hire someone to perform the work or duties she did.
Appellant did not report her work activities despite the unambiguous requirement that she report
them even if she was not paid or the activities were intermittent or sporadic. Accordingly, the
Board finds that OWCP properly determined that appellant forfeited her right to compensation
from November 30, 2009 to August 15, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

12

See supra notes 6 through 10.

6

CONCLUSION
The Board finds that OWCP properly found that appellant forfeited her right to
compensation for the period November 30, 2009 to August 15, 2011 because she knowingly
failed to report her employment activities for this period.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE AIR FORCE,
Warner Robins, GA, Employer
__________________________________________

)
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)
)
)
)
)

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

Docket No. 08-1458
Issued: November 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2008 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated February 4, 2008 which denied his hearing loss claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
decision.
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of his duties.
FACTUAL HISTORY
On August 31, 2007 appellant, then a 62-year-old inventory management specialist, filed
an occupational disease claim alleging that he sustained a hearing loss in the performance of
duty.
On September 10, 2007 the Office requested additional information.
responded in a September 26, 2007 letter and submitted additional information.

Appellant

On December 4, 2007 the Office informed appellant that he was being sent for a second
opinion evaluation to address the issue of whether he had noise-induced hearing loss as a result
of his federal employment. The December 4, 2007 statement of accepted facts reported that
appellant worked as an aircraft mechanic from 1990 to 2007 with exposure including noise from
generators, air conditioner, air compressor, grinders, drills, impact tools and tow equipment for
five days a week, eight hours a day. On December 21, 2007 appellant was examined by Kenneth
Walker, an otolaryngologist, and an audiogram was performed. In his report dated the same day,
Dr. Walker opined that appellant’s hearing loss was not due to his federal employment but that
the high frequency hearing loss was consistent with presbycusis. He agreed that the workplace
exposure, “machinery,” was sufficient as to intensity and duration to have caused the hearing
loss.
In a December 28, 2007 report, Dr. Walker noted that the December 21, 2007 audiogram
revealed mild high frequency sensorineural hearing loss bilaterally. He also noted that
audiograms from 1988 showed essentially normal hearing. Dr. Walker opined that appellant’s
hearing loss was mild and consistent with presbycusis at this point.
In a February 4, 2008 decision, the Office denied appellant’s claim finding that the
medical evidence did not demonstrate that appellant’s hearing loss was related to the established
work-related events. It relied on Dr. Walker’s opinion in concluding that his hearing loss was
due to presbycusis and not due to his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition,
for which compensation is claimed are causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed, or stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.3

1

5 U.S.C. §§ 8101-8193

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

2

ANALYSIS
Appellant alleged that he sustained a hearing loss due to factors of his employment. The
Office accepted that appellant was exposed to various machinery noise during his federal
employment from 1990 to 2007. It denied appellant’s claim based on Dr. Walker’s reports.
Dr. Walker noted that appellant went from essentially normal hearing, revealed in 1988
audiogram, to mild high frequency sensorineural hearing loss bilaterally, revealed in the
December 21, 2007 audiogram. He also agreed that appellant’s workplace exposure was
sufficient enough to have caused his hearing loss however he then concluded that appellant’s
hearing loss was due to presbycusis. Dr. Walker offered no explanation as to why appellant’s
hearing loss was caused by presbycusis or why it was not caused by workplace exposure. It is
well established that proceedings under the Act are not adversarial in nature, and while the
employee has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.4 The Office sent appellant out for a second
opinion. Once the Office starts to procure a medical opinion, it must do a complete job.5
Dr. Walker’s opinion is merely a conclusion without any rationale supporting it. Medical
evidence must include rationale explaining how the physician reached the conclusion he or she is
supporting.6 Dr. Walker’s opinion is not sufficiently supported to use as the basis for denying
appellant’s claim.
The Board finds that the Office failed to undertake proper development of the medical
evidence. The Office erred by not requesting Dr. Walker to provide a supplemental report,
which explained with medical rationale the cause of appellant’s hearing loss.
On remand, the Office should further develop the medical evidence and obtain a
supplemental report from Dr. Walker to address the issue of whether appellant’s accepted work
activities caused or contributed to his hearing loss. Following this and any other further
development as deemed necessary, the Office shall issue an appropriate merit decision on
appellant’s occupational disease claim.
CONCLUSION
The Board finds that the Office did not properly develop the medical evidence and should
be remanded for further development.

4

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

Richard F. Williams, 55 ECAB 343, 346 (2004); William N. Saathoff, 8 ECAB 769, 770-71 (1956).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2008 decision of the Office of
Workers’ Compensation Programs is vacated and remanded.
Issued: November 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4