United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Collierville, TN, Employer
__________________________________________

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

Docket No. 17-1893
Issued: August 23, 2018

Case Submitted on the Record

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

JURISDICTION
On September 7, 2017 appellant, through counsel, filed a timely appeal from an August 11,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The case record provided to the Board includes evidence received after OWCP issued its August 11, 2017
decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish total disability from
work on September 7, 2016 and commencing December 17, 2016 causally related to her accepted
right shoulder condition.
FACTUAL HISTORY
On December 3, 2015 appellant, then a 54-year-old rural mail carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on December 2, 2015, her right shoulder popped when she
opened the door of her long life vehicle (LLV). OWCP accepted the claim for sprain of right
rotator cuff capsule.
Appellant stopped work on December 2, 2015. She returned to full-time modified work
on February 20, 2016 and worked until February 23, 2016. Appellant again stopped work on
February 24, 2016 as the employing establishment was unable to accommodate new restrictions
regarding her right arm from Dr. John J. Lochemes, a Board-certified orthopedic surgeon. OWCP
paid appellant wage-loss compensation benefits from February 24 until April 26, 2016 as the
employing establishment withdrew light duty. Appellant returned to full-duty work on April 26,
2016 based upon Dr. Lochemes’ April 20, 2016 opinion.
In a May 3, 2016 report, Dr. Lochemes reported appellant’s continued complaints of right
shoulder pain. He provided a cortisone injection into the right shoulder and released her to lightduty work with no reaching overhead. Appellant accepted a full-time modified position on
May 6, 2016.
In a May 26, 2016 report, Dr. Lochemes reported nearly full range of motion and a bit of
impingement pain. He added an hour to appellant’s driving time for a total of 2.5 hours and
released her to full duty effective June 11, 2016. Appellant returned to full-duty work on
June 11, 2016. Dr. Lochemes continued to allow appellant to perform full-duty work.
In an August 30, 2016 report, Dr. Lochemes noted appellant’s complaints of right shoulder
pain and a new complaint of numbness and tingling in the fingers (6-7 nerve distribution). A
cervical x-ray demonstrated no acute abnormalities. Dr. Lochemes indicated that he was trying to
sort out whether she was suffering cervical spine or rotator cuff problems. He released appellant
to full duty.
In a September 13, 2016 report, Dr. Lochemes reviewed appellant’s September 7, 2016
magnetic resonance imaging (MRI) scan of her cervical spine. He diagnosed cervical
radiculopathy at C4-C5, annular tear of cervical disc, and sprain of right rotator cuff capsule.
Dr. Lochemes released appellant to full duty.
Appellant continued to complain of cervical pain and right shoulder pain. In a
September 29, 2016 report, Dr. Lochemes reported that appellant wanted to return to work with
restrictions. He released appellant to light-duty work with permanent restrictions.
In a December 1, 2016 report, Dr. Lochemes’ examination revealed generalized pain and
stiffness in the neck with limited motion in extension. He noted possible right shoulder C5
radicular symptoms, but no weakness in the shoulder. Dr. Lochemes’ diagnosed cervical
2

radiculopathy and cervical spondylosis. Appellant was to resume modified light duty with
restrictions.
Appellant stopped work on December 17, 2016 and has not returned.4
In a December 27, 2016 report, Dr. Lochemes reported appellant’s continued complaints
of elusive cervical pain and right shoulder pain which appeared to be related to impingement. A
diagnosis of cervical radiculopathy, cervical spondylosis, annular tear of cervical disc,
supraspinatus tear right shoulder, and tendinosis right shoulder was provided. Dr. Lochemes noted
that appellant could resume modified light duty with restrictions. He ordered a functional capacity
evaluation (FCE), which appellant underwent on January 5, 2017.
On January 9, 2017 appellant filed a claim for compensation (Form CA-7) for medical
appointments for 16 hours for September 7 and 13, 2016. The employing establishment certified
16 hours total leave without pay (LWOP) for the above dates.
On January 19, 2017 appellant filed a Form CA-7 for total disability for the period
December 17 to 30, 2016 and continuing.
In a January 23, 2017 development letter, OWCP informed appellant that the medical
evidence of record was insufficient to support her claims for compensation. It noted that the
medical evidence for September 7 and 13, 2016 pertained to medical treatment for a cervical
condition which had not been accepted as work related. With regards to the claimed total disability
beginning December 17, 2016, OWCP noted that Dr. Lochemes had released her to full duty on
April 20, 2016. It advised that she must submit medical evidence which explained how her
accepted condition had worsened such that she was no longer able to perform the duties of her
position. Appellant was afforded 30 days to submit the additional evidence.
Medical reports from Dr. Lochemes dated September 29 through December 1, 2016 were
received. In a January 11, 2017 report, Dr. Lochemes reported that appellant presented for
reevaluation of cervical annular tear at C4-C5 with spinal stenosis and supraspinatus tendon tear.
He also reported the results of the FCE, noting that it demonstrated some issues with lifting.
Dr. Lochemes provided an assessment of annual tear of cervical disc, supraspinatus tear of right
shoulder, tendinosis of right shoulder, and cervical radiculopathy. Appellant was released to work
with permanent restrictions.
In a February 9, 2017 report, Dr. Lochemes indicated that appellant’s cervical annular tear
at C4-C5 with spinal stenosis and supraspinatus tendon tear were essentially unchanged. Appellant
reported some difficulty with reaching the seatbelt and reaching out the right window repetitively
with the shoulder. Dr. Lochemes felt that she would not do well delivering mail from a motorized
vehicle and modified her restrictions to include no driving company vehicle.

4
Appellant filed an occupational disease claim (Form CA-2) on January 25, 2017 to which OWCP assigned OWCP
File No. xxxxxxx585.

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By decision dated March 6, 2017, OWCP denied appellant’s claim for attending medical
appointments on September 7 and 13, 2016 as there was no evidence of record that she had sought
treatment for her accepted work-related condition on the claimed dates.
By decision also dated March 6, 2017, OWCP denied appellant’s claim for total disability
compensation from December 17, 2016 and continuing. It found that the medical evidence of
record did not substantiate that her disability was caused by the accepted work-related medical
condition. OWCP noted that appellant was released and returned to full-duty work for the accepted
condition and that she was receiving medical treatment for a nonaccepted cervical condition.
On July 28, 2017 appellant, through counsel, requested reconsideration. She resubmitted
a copy of the September 6, 2016 MRI scan of her cervical spine.
Medical reports from Dr. Lochemes dated January 11, February 9, and March 29, 2017
discussed appellant’s cervical annular tear at C4-C5 with spinal stenosis and supraspinatus tendon
tear. Dr. Lochemes continued to opine that appellant could return to work with permanent
restrictions. In his March 29, 2017 report, he reported that appellant continued to complain of
some neck and shoulder issues particularly when driving for her job. Dr. Lochemes advised that
he did not have a strong argument to causally connect her neck to her other pathology because
there was no mechanism of injury other than she delivered mail and may have turned her head
right and left a lot.
In an April 26, 2017 report, Dr. Stephen Waggoner, a Board-certified orthopedic surgeon,
noted the history of the injury. He reported that appellant complained mainly of pain in the anterior
shoulder that was worsened by overhead activity and some neck pain. Dr. Waggoner provided an
assessment of impingement syndrome of right shoulder, sprain of right rotator cuff capsule, and
incomplete tear of right rotator cuff. He released appellant to light duty with restrictions.
In a May 11, 2017 report, Dr. Christopher M. Pokabla, an orthopedic surgeon, noted the
history of the work injury and appellant’s medical course, including her cervical issues. He
reported examination findings of the right shoulder, took x-rays, and reviewed a December 23,
2015 right shoulder MRI scan. Dr. Pokabla provided an assessment of incomplete tear of right
rotator cuff. He opined that appellant could return to light duty with restrictions.
On May 24, 2017 appellant underwent an MRI scan of her right shoulder. In a June 2,
2017 report, Dr. Pokabla noted the results of the right shoulder MRI scan and noted that surgical
clearance was needed for incomplete tear of right rotator cuff. He also assessed cervical
radiculopathy. Dr. Pokabla released appellant to light-duty work status with restrictions.
In a July 5, 2017 report, Dr. John D. Brophy, a Board-certified neurologist, evaluated
appellant’s right upper extremity symptoms. He noted the history of injury, appellant’s medical
course, and that she had been off work since November 2016. Dr. Brophy provided an impression
of cervical/trapezius myofascial pain associated with cervical spondylosis without clinical
evidence of radiculopathy or myelopathy and right shoulder joint pain. He opined that there was
no indication for surgical intervention related to her cervical spondylosis. In a July 21, 2017 report,
Dr. Brophy discussed the September 7, 2016 cervical MRI scan results and opined that surgical
intervention was not indicated.

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In a July 6, 2017 priority for assignment worksheet, the employing establishment indicated
that they were unable to accommodate appellant’s work restrictions.
By decision dated August 11, 2017, OWCP modified the March 6, 2017 decision in part to
reflect payment for eight hours on September 13, 2016 as appellant attended the medical
appointment, in part, to check on her work-related shoulder condition. The remainder of the
March 6, 2017 decisions regarding denial of payment for the medical appointment on September 7,
2016 and denial of the claimed total disability from December 17, 2016 and continuing were
affirmed.
LEGAL PRECEDENT
Under FECA,5 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.6 Whether a particular
injury causes an employee to be disabled from work and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative, and substantial medical
evidence.7 Findings on examination are generally needed to support a physician’s opinion that an
employee is disabled from work. When a physician’s statements consist only of a repetition of the
employee’s complaints that excessive pain caused an inability to work, without making an
objective finding of disability, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.8 The Board will not require OWCP to pay
compensation for disability without medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to selfcertify their disability and entitlement to compensation.9
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.10 To establish causal relationship between the
condition, as well as any attendant disability claimed and the employment event or incident, the
employee must submit rationalized medical opinion evidence supporting such causal
relationship.11 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.12 Neither the mere fact that a disease
5

Supra note 2.

6

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

7

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

8

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

9

Id.

10

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

11

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

12

James Mack, 43 ECAB 321 (1991).

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or condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.13
ANALYSIS
The Board finds that appellant has not established that she was entitled to wage-loss
compensation on September 7, 2016 and commencing December 17, 2016 causally related to her
accepted right shoulder condition.
There is, however, no probative evidence of record that appellant’s medical appointment
on September 7, 2016, during which she underwent a cervical MRI scan, was for treatment of her
accepted work-related right shoulder condition.14 The record therefore does not establish that
appellant was entitled to wage-loss compensation on September 7, 2016.15
Furthermore, the medical evidence of record does not establish that appellant was totally
disabled on or after December 17, 2016 causally related to her accepted employment condition of
right rotator cuff capsule strain.16
Appellant has the burden of proving by the weight of the substantial, reliable, and probative
evidence a causal relationship between her claimed disability on or after December 17, 2016 and
the accepted December 2, 2015 employment injury.17 The reports of her physicians do not provide
a rationalized medical opinion substantiating that appellant was disabled from work on or after
December 17, 2016 due to her accepted sprain of right rotator cuff capsule. Therefore, the medical
evidence submitted is insufficient to meet appellant’s burden of proof.18
Dr. Lochemes treated appellant on a number of occasions for her right shoulder injury. He
released appellant to return to full-duty work as of June 11, 2016. On December 1, 2016
Dr. Lochemes diagnosed cervical radiculopathy and cervical spondylosis and related that appellant
could resume modified light-duty work. However, these cervical conditions were not accepted as
employment related. Appellant bears the burden of proof to establish that a diagnosed condition
is causally related to the employment injury.19 On December 27, 2016 Dr. Lochemes noted that
appellant had continued elusive cervical and right shoulder pain complaints. He diagnosed
13

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

14

M.B., Docket No. 06-0701 (issued December 4, 2006); Thomas Lee Cox, 54 ECAB 509 (2003); Stella M. Bohlig,
53 ECAB 341 (2002).
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998); see also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).
16

The Board will not require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. L.L., Docket No. 13-2146 (issued
March 12, 2014). See also William A. Archer, 55 ECAB 674, 679 (2004).
17

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

18

Alfredo Rodriguez, 47 ECAB 437 (1996).

19

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

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cervical radiculopathy, cervical spondylosis, annular tear of the cervical disc, supraspinatus tear
of the right shoulder, and tendinosis of the right shoulder. Dr. Lochemes did not note appellant’s
accepted right shoulder conditions. In his March 29, 2017 report, he noted that he did not have a
strong argument to causally connect appellant’s neck conditions to her other pathology because
there was no mechanism of injury other than she delivered mail and may have turned her head
right and left a lot. It is noted that appellant failed to provide a sufficient explanation as to the
mechanism of injury pertaining to this traumatic injury claim, namely, how the traumatic injury of
December 2, 2015 would cause or aggravate her neck conditions.20 As such, Dr. Lochemes’
reports are of limited probative value and insufficient to meet appellant’s burden of proof.21
In his April 26, 2017 report, Dr. Waggoner diagnosed sprain of right rotator cuff capsule,
as well as impingement syndrome of the right shoulder and incomplete tear of right rotator cuff.
He released appellant to light duty with restrictions. Dr. Waggoner released appellant to lightduty work, but offered no opinion as to whether appellant was totally disabled as of December 17,
2016 due to the accepted condition. Since Dr. Waggoner’s report did not specifically address
appellant’s accepted condition and dates of disability, his report is insufficient to establish
appellant’s burden of proof.22
In medical reports dated May 11 and June 2, 2017, Dr. Pokabla diagnosed appellant with
incomplete tear of right rotator cuff and released appellant to light duty with restrictions. While
Dr. Pokabla noted the history of the December 2, 2012 work injury, he failed to provide any
opinion that appellant’s right shoulder condition and possibility of elective surgery were caused or
aggravated by the December 2, 2015 work injury.23 Thus, Dr. Pokabla’s reports are insufficient
to meet appellant’s burden of proof.
In a July 5, 2017 report, Dr. Brophy provided an impression of cervical/trapezius
myofascial pain associated with cervical spondylosis without clinical evidence of radiculopathy or
myelopathy and right shoulder joint pain. He indicated in his July 5 and 21, 2017 reports that
surgical intervention related to the cervical spondylosis was not indicated. While he had some
knowledge of appellant’s employment injury, Dr. Brophy failed to provide any opinion that the
conditions diagnosed were caused or aggravated by the December 2, 2015 employment injury.24
Thus, his reports are insufficient to meet appellant’s burden of proof.
The FCE and MRI scan testing are of no probative value on appellant’s claim for wageloss compensation as they do not establish disability or provide an opinion that the diagnosed

20

S.W., Docket 08-2538 (issued May 21, 2009).

21

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
22

Supra note 10.

23

See supra note 17.

24

Id.

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conditions are causally related to the December 2, 2015 employment injury and support that
conclusion with sound medical reasoning.25
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.26 Because
appellant has not submitted reasoned medical opinion evidence to establish employment-related
disability on or after December 17, 2016 as a result of her accepted sprain of right rotator cuff
capsule, the Board finds that appellant has not met her burden of proof to establish her claim for
disability compensation.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established total disability from work on
September 7, 2016 and commencing December 17, 2016 causally related to her accepted right
shoulder condition.

25

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

26

See supra note 17.

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ORDER
IT IS HEREBY ORDERED THAT the August 11, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE AIRFORCE, IDAHO
AIR NATIONAL GUARD, Boise, ID, Employer
__________________________________________

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Appearances:
Wendy L. Hatten, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1647
Issued: August 15, 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 June 4, 2007 appellant filed a timely appeal from the May 23, 2007 decision of the
Office of Workers’ Compensation Programs denying his claim for compensation on the grounds
that fact of injury was not established. 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 established that he sustained an injury in the performance
of duty on December 19, 2001, as alleged.
FACTUAL HISTORY
On December 20, 2001 appellant, then a 42-year-old aircraft mechanic, filed a traumatic
injury claim alleging that on December 19, 2001 he pulled muscles in his lower back while in the
performance of duty. Specifically, he noted that he was walking down steps with an air
conditioning panel in his hands and “stepped on a 2 cell mag lite that rolled under my weight.”
In a letter dated April 8, 2003, the Office informed appellant that his case was originally received

as a simple, uncontroverted case which resulted in minimal time loss and that these cases were
administratively handled to allow medical payments of up to $1,500.00 but that the merits of the
case had never been addressed. It informed appellant that it was now necessary for him to
submit further information to support his claim.1
Appellant responded to the Office’s request in a letter dated April 29, 2003 wherein he
noted that his job as aircraft mechanic crew chief required him to service, maintain and repair a
C-130 Herculus aircraft of the Idaho Air National Guard. He noted that this position required a
varied degree of physical exertion. Appellant reiterated that, on December 19, 2001, while
carrying a large panel down stairs, he stepped on a 2 cell mag lite (flashlight) which caused him
to lose his balance and wrench his back as he tried to catch himself and not drop that panel. He
noted that his low back immediately hurt and that he immediately reported the incident to his
supervisor. Appellant noted that at the time of the December 19, 2001 incident he was already
on light duty for an August 1, 2001 injury and was on pain medication and muscle relaxers for
that event. He further stated that, as there was already a controversy about the medical status of
the prior incident and whether these bills would be paid, he did not go to his physician right
away. Appellant stated, “The thought was that I had pulled a muscle and I already had
medication for that type of injury.” He noted that at the end of January 2002 his low back pain
had not subsided so he opted to go to his family physician. Appellant noted that, over the course
of the next several months, there were many visits to his family physician and other specialists
with regard to his mid-back pain resulting from both the August 1 and December 19, 2001
incidents. He noted that it was not until the November/December 2002 time frame that his low
back pain became so great that it was decided that a magnetic resonance imaging (MRI) scan
should be performed and it was at that time that the herniated discs were discovered.
In a medical report dated July 29, 2002, Dr. Brenda J. Adams, a Board-certified family
practitioner, noted that she initially saw appellant on June 6, 1990 after he had been ejected from
an aircraft. She noted that she treated him for multiple injuries since that time. Dr. Adams noted
that appellant outlined his injuries as including a December 19, 2001 injury when he stepped on
a round flashlight on one of the steps and twisted his back. She indicated that she was unable to
determine “what pain issues he has are related to what injuries he has had in the past.
[Appellant] certainly has suffered a very extreme injury when he had the uncontrolled ejection
from the aircraft 12 years ago and certainly has been complaining of musculoskeletal pain on a
fairly regular, ongoing basis since that time.” In November 27 and December 11, 2002 reports,
Dr. Adams indicated that she treated appellant for chronic neck and back pain.
Appellant submitted medical reports by Dr. Joseph M. Verska, a Board-certified
orthopedic surgeon. He first saw Dr. Verska on December 27, 2002 and he noted that
Dr. Adams referred appellant to him. Under history, Dr. Verska noted that appellant’s back pain
started in 1990 when he was ejected from an RF-4C. Appellant also informed Dr. Verska of an
injury on August 1, 2001 that occurred while moving equipment on a C-130. Dr. Verska noted
1

The Board notes that the Office previously accepted appellant’s claim for a May 17, 1990 cervical strain he
suffered when he was ejected from an RF-4C aircraft. However, the Office denied appellant’s claim for a
recurrence of disability commencing December 30, 1996. On May 3, 2006 it denied appellant’s request for
reconsideration without merit review and this Board affirmed the Office’s decision on March 19, 2007. Docket
No. 06-1389.

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at this time that appellant had a mild disc bulge at L5-S1 producing S1 radiculitis. He noted that
it would be difficult to determine who was responsible for appellant’s injuries, although he noted
that the leg pain was recent with onset three or four weeks ago. In notes dated January 9 and 28,
2003, Dr. Verska indicated that appellant continued to complain of right buttock pain and right
posterior thigh pain. Appellant noted that he underwent an S1 nerve block which did not give
him too much relief of pain.
In a March 13, 2003 report, Dr. Ronald S. Higginbotham, an osteopath, indicated that he
had been involved in appellant’s musculoskeletal care since October 1998. He noted three
significant injuries: a May 17, 1990 injury when ejected from an aircraft; an August 1, 2001
injury that occurred while moving heavy equipment; and a December 19, 2001 injury from
twisting/tripping while stepping on a flashlight while doing aircraft maintenance.
Dr. Higginbotham noted that appellant had chronic myofascitis as a result of the first injury and
the second injury exacerbated the symptoms of the first injury. He stated that the third injury,
however, was different in that the outcome was the development of a new finding -- right leg
radicular symptoms. Dr. Higginbotham noted that a neurological consult and MRI scan
demonstrated a herniated lumbar disc.
By decision dated May 23, 2003, the Office denied appellant’s claim. It found that,
although the evidence established that the event occurred as alleged, there was no medical
evidence that provided a medical diagnosis connected with the accepted event.
On May 20, 2003 appellant requested reconsideration. In a May 29, 2003 memorandum,
he indicated that he did not see a physician at the time of the injury because there was an
ongoing debate at the time with regard to status of his claim. Appellant further noted, “When I
queried about treatment, I was informed not to incur bills for medical treatment without
authorization, as they would probably not be reimbursed.” He noted that, in trying to keep
medical bills to a minimum, he did not see a physician immediately after the December 19, 2001
employment incident. Appellant noted that he was on medication for the August 1, 2001
occurrence and it was not until January 24, 2002 that he went to a doctor about his low back
strain.
On May 29, 2003 appellant sent a memorandum to various parties at the employing
establishment seeking statements in support of his claim. In that memorandum, he noted that the
Office had denied his claim regarding the alleged December 19, 2001 injury, which occurred
when he stepped on a round flashlight which caused him to twist his back. Appellant also noted
that he had a prior injury on August 1, 2001 while on training and that immediately following
that event, a debate started concerning his status. He stated that the military medical personnel
involved considered the injury a recurrence of his 1990 ejection injuries and not a military
responsibility and the human resources officer considered it a new injury. During this debate,
appellant indicated that the condition of his whole back came into question and he was told not
to incur further medical bills without authorizations as they probably would not be reimbursed.
Several officers responded. In a June 2, 2003 statement, CM Sergeant David E. Beckman stated
that he fully concurred with appellant’s position concerning his continuing problems of receiving
medical treatment. He noted that the events and dates provided were accurate and the advice he
received to not incur any unauthorized treatment or bills is correct, as legal and medical
personnel at “Gwen Field” gave him this advice and he had no reason not to follow it. In a

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July 13, 2003 memorandum, Major John A. Miller and also noted his support that appellant’s
claim should be reconsidered. He argued that the evidence clearly established that appellant was
well enough to perform his duties prior to the alleged December 19, 2001 injury. In a July 13,
2003 memorandum, Colonel Daniel M. Skate indicated that he recommended acceptance of the
claim for compensation, noting that the injury was documented on the CA-1, that the medical
care related to a back injury and that there was no intervening history of another cause of back
injury. Finally, in a July 15, 2003 memorandum, Brigadier General Gary L. Saylor indicated that
he strongly concurred with appellant’s request for additional review of the alleged December 19,
2001 job injury. He stated, “Bureaucratic confusion over the medical responsibility of previous
injuries has interfered with the proper medical handling of this incident.” Brigadier General
Saylor noted that, following the 1990 aircraft ejection injury, appellant did not return to the
physical condition he enjoyed prior to the accident, but he was able to perform job duties at a
satisfactory level. However, he noted that, since the December 2001 incident, appellant has been
“unable to perform satisfactorily and is facing a possible medical elimination.”
By decision dated October 24, 2003, the Office denied modification of its decision.
By letter dated October 21, 2004 appellant, through his attorney, requested
reconsideration.
In further support of his claim, appellant submitted medical reports by Dr. Michael V.
Hajjar, a neurosurgeon, who first saw appellant on October 15, 2003. In history, Dr. Hajjar
noted that appellant indicated that his low back pain began in the early 1990s and that he was
reinjured in 2001 as a result of his work as an aircraft mechanic. In a December 11, 2003 report,
he reviewed appellant’s MRI scan and decided to defer any surgery at this time. Dr. Hajjar noted
that, given appellant’s level of pain and restricted level of activity significant for pain, he likely
will require a job that does not involve heavy lifting or physical activity. In a June 15, 2004
report, he reviewed appellant’s condition by examining him and reviewing his studies.
Dr. Hajjar noted that appellant continued to have persistent back pain and right-sided leg pain
radiating down his back to his leg to his foot. He noted that at the present time he did not
recommend lumbar spine surgery although he did note that appellant had moderate spondylotic
changes at the lowest two interspaces. Dr. Hajjar also noted that the cervical spine showed more
significant degenerative changes at C5-6 and C6-7 with mild changes at C4-5 and some evidence
of C6 radiculopathy.
In a report dated October 18, 2004, Dr. Richard Radnovich, an osteopath, noted that
appellant initially came to see him on July 27, 2004 complaining of low back pain. He noted that
his examination at the time was inconclusive. Dr. Radnovich noted that since that time he had
reviewed appellant’s medical record. He noted that, at the time of the first visit, appellant
indicated that he thought the mechanism for his injury was an aircraft ejection that happened
14 years ago. However, Dr. Radnovich indicated that, in reviewing appellant’s extensive chart,
it appeared that low back pain was never addressed as part of the ejection injury nor was
radicular pain ever mentioned. He further noted that, in his conversations with appellant, he was
never able to make a direct connection between the ejection and the low back pain.
Dr. Radnovich noted that there were mentions of low back pain in chart notes for April 1994 and
December 30, 1996 but at neither time was it related to his ejection from the plane. He noted
that in September 1998 appellant saw Dr. Higginbotham and complained of low back pain and

4

that this was the first time he related it to the ejection. However, there was a notation of no
radiation of pain to leg. Dr. Radnovich noted that, following the work injury of December 19,
2001, there are notes in January, May, July and November 2002 noting low back pain. He
opined:
“I believe that [appellant] suffered an injury on December 19, 2001. It is
impossible to determine what the true nature of the injury was at that time, but I
believe that it is likely that it was an annulus tear of his dis[c] at L5-S1 causing a
chemical irritation of his nerve roots causing a radiating pain down his leg. I
believe that documents support this, despite the fact that he did not seek
immediate medical attention after the injury. He did have at least five interactions
with healthcare providers directly concerning his lower back after this injury and I
believe that only one or two consultations to a physician for his low back pain
prior to this date. Neither of those encounters included the radicular component
of pain into his right leg. Of course, there was likely an underlying
predisposition, i.e., the likely degenerative changes that already existed and
perhaps connective tissue damage that occurred due to his ejection injury. This,
however, is quite speculative and I repeat that we do not know that he had many
more visits for his low back after the date of December 19, 2001 than before and
that his symptom pattern was different after that date than before and that his
injury pattern is consistent with a different diagnosis. I again, therefore, conclude
that his lumbar and radicular complaints are more likely than not attributable to
the injury dated December 19, 2001.”
By decision dated May 9, 2005, the Office reviewed appellant’s case on the merit and
denied modification as fact of injury had not been established. It noted that factual
inconsistencies were so great that appellant had not established an injury. Carolyn Schwab,
supervisory claims examiner, noted that appellant waited over one year before telling a physician
about the employment incident of December 19, 2001. She also noted that appellant was a
capable historian with regard to other injuries sustained over the years. Ms. Schwab found that
these inconsistencies combined with lack of persuasive medical evidence of causal relationship
negates the factual component of “fact of injury.” Accordingly, the Office modified the May 23,
2003 decision to reflect that the factual component of “fact of injury” had not been established.
On November 28, 2005 appellant requested reconsideration. In support thereof, appellant
submitted notes dated from September 2, 2004 through August 26, 2005 from Dr. Radnovich
indicating that he suffered from depression, lumbalgia and other enthesopathy of elbow. These
reports also indicate that appellant was complaining of back pain. Appellant also submitted
physical therapy notes, which indicated that he was seen for a total of 22 visits between July 9
and October 29, 2003. He also submitted a note by Dr. R. Tyler Frizzeell, a Board-certified
neurosurgeon, dated May 27, 2004, who indicated that appellant had permanent restrictions that
were directly related to his military injury of May 17, 1990, with no apportionment. Finally,
appellant submitted treatment notes by a licensed massage therapist.
By decision dated December 13, 2005, the Office found that the evidence submitted was
insufficient to require merit review of the case.

5

On April 18, 2006 appellant requested reconsideration. By decision dated May 23, 2007,
the Office reviewed appellant’s claim on the merits.2 It determined that, although the evidence
was sufficient to support that the incident occurred as alleged, appellant’s “behavior” was
inconsistent with having sustained a compensable injury and there was no contemporaneous
medical evidence to establish an injury occurred as alleged. The Office then determined that
appellant’s application was not sufficient to warrant modification of the prior decision for the
reason that the factual component of fact of injury had not been established.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his 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.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. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.5 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
An employee may establish that the employment incident occurred as alleged, but fail to show
that his disability and/or condition related to the employment incident.
The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. An injury does not have to be
confirmed by eyewitnesses in order to establish that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.7 An employee has not met
2

Appellant’s request for reconsideration was filed on April 18, 2006 and the Office did not issue its decision until
over one year later on May 23, 2007. In letters to appellant’s senator and congressman, the Office explained this
delay was caused by a clerical error. The Office’s procedures state that, if a reconsideration decision is delayed
beyond 90 days and the delay would jeopardize a claimant’s ability to seek a merit review of his claim before the
Board, the Office shoulder conduct a merit review and issue a decision so as to protect appellant’s right to appeal.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 1602.7 (January 1992); see also
Ronald A., Eldridge, 53 ECAB 218 (2001). Accordingly, the Office properly reviewed the case on the merits.
3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
6

Shirley A. Temple, 48 ECAB 404 (1997).

7

See Betty J. Smith, 54 ECAB 174 (2002).

6

his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8 Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast doubt on an employee’s statements in determining whether a
prima facie case has been established.9 However, an employee’s statement regarding the
occurrence of an employment incident is of great probative force and will stand unless refuted by
strong or persuasive evidence.10
ANALYSIS
As previously indicated, there are two criteria that must be met in order for appellant to
establish that he sustained a traumatic injury in the performance of duty. First, the employee
must submit sufficient evidence to establish that he actually experienced the employment
incident at the time, place and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.11
In the May 23, 2003 decision, the Office found that, although the evidence established
that the event occurred as alleged, there was no medical evidence provided that established a
medical diagnosis connected with the accepted event. In its October 24, 2003 decision, it denied
modification. However, in the Office’s May 9, 2005 decision, it found that the factual
inconsistencies are so great that appellant has not established that an injury occurred within the
meaning of the Act. The Office noted that this coupled with the absence of persuasive medical
evidence of causal relationship, indicated that appellant had not established an injury as alleged.
It proceeded to modify the prior decision by stating that the factual component of “fact of injury”
had not been established. In the May 23, 2007, the Office again denied appellant’s claim for the
reason that the factual component of fact of injury had not been established. The Board notes
that this decision is somewhat confusing as it also indicates that the incident occurred as alleged
but was denied because no contemporaneous medical evidence was submitted. The Office
appears to intermingle the criteria to the extent that it is not entirely clear as to the exact grounds
for denying appellant’s claim. Nevertheless, its statement that the factual component of fact of
injury had not been established, especially when combined with the fact that the May 9, 2005
decision specifically modified the prior finding that the incident occurred as alleged and the fact
that the Office refers to factual inconsistencies indicates that it denied appellant’s claim for the
reason that appellant did not establish that the incident occurred as alleged.
The Board finds, notwithstanding, that the Office’s finding that appellant did not
establish that the incident occurred due to great factual inconsistencies is without merit. The
Board initially notes that appellant promptly filed his claim on December 20, 2001, just one day
after the alleged incident. Accordingly, there was no delay in filing the claim. Second, appellant
8

Id.

9

Linda S. Christian, 46 ECAB 598 (1995).

10

Gregory J. Reser, 57 ECAB 277 (2005).

11

Paul Foster 56 ECAB 208 (2004).

7

submitted numerous statements from various military officers from the employing establishment
indicating that there was a December 19, 2001 incident. Furthermore, Brigadier General Saylor
indicated that, since the December 2001 incident, appellant had not been able to perform his
duties satisfactorily and was facing possible medical elimination which indicates that he did not
perform his job without difficulty. The Office appears to give great weight to the fact that
appellant did not seek prompt medical treatment. Appellant explained this delay by indicating
that he thought he had only pulled a muscle and noting that he was already on medication for an
August 2001 incident. He also noted that he was told by representatives of the employing
establishment not to incur any further bills without medical authorization as they were
attempting to determine who was liable for appellant’s bills. Appellant’s statements are
supported by the statements of the military officers. In particular, Sergeant Beckman stated that
appellant was told by legal and medical personnel to not incur any unauthorized treatment or
bills and that appellant had no reason not to listen to this advice. In addition, the Office’s
statement in its May 23, 2007 decision, indicating that there was no evidence that appellant
mentioned the December 19, 2001 incident to a medical provider until well over a year after the
incident is contradicted not only by the medical evidence but also by the Office’s notation in the
same decision that Dr. Adams mentioned the December 19, 2001 incident in her July 29, 2002
report. Furthermore, appellant’s description of how the incident occurred was totally consistent
whether he was giving a statement to the Office, to the employing establishment or the doctors,
i.e., appellant indicated that he injured himself when he stepped on a flashlight. An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong and persuasive evidence.12 Not only is
there no strong evidence contradicting appellant’s statement as to how the incident occurred but
there is considerable evidence supporting appellant’s statement. Accordingly, the Board finds
that the Office improperly determined that appellant did not establish that the incident occurred
as alleged.
In the decision dated May 23, 2003, the Office determined that no medical evidence was
provided that established a medical diagnosis in connection with the accepted event. As
previously stated, it later modified this decision to indicate that the “factual component of fact of
injury had not been established.” The last time the medical evidence was completely evaluated
with regard to causal relationship was in the May 23, 2003 decision. Subsequent to this decision,
substantial medical evidence was received. This included reports by Dr. Radnovich including an
October 18, 2004 report wherein he concluded that appellant’s lumbar and radicular complaints
are more likely than not attributable to the December 19, 2001 injury. This medical evidence
must be considered in order to determine whether appellant has met the second criteria of fact of
injury, i.e., establishing that the now accepted employment incident caused a personal injury.
However, the more recent medical evidence was never considered in great detail with regard to
causal relationship, rather the Office discussed it mainly in connection with whether appellant
established that the incident occurred. Accordingly, the Board remands this case in order for the
Office to issue a decision with regard to whether appellant has established that the accepted
incident of December 19, 2001 caused a personal injury.

12

Allen C. Hundley, 53 ECAB 551 (2002).

8

CONCLUSION
The Board finds that appellant established that the employment incident occurred as
alleged. The Board finds that the case must be remanded for further consideration as to whether
the medical evidence establishes that a medical condition resulted from this accepted incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2007 is affirmed in part and vacated in part. The case is
remanded for further consideration consistent with this opinion.
Issued: August 15, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, MEMPHIS BULK
MAILING CENTER, Memphis, TN, Employer
__________________________________________

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Appearances:
Leo Span, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-301
Issued: April 23, 2007

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 November 14, 2006 appellant filed a timely appeal from the August 15, 2006 decision
of the Office of Workers’ Compensation Programs, denying reconsideration of its August 19,
2005 decision denying appellant’s claim for a schedule award. Because appellant filed her
appeal more than a year after the last merit decision, pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board does not have jurisdiction over the merits of the claim. Therefore, the only
decision properly before the Board is the Office’s August 15, 2006 nonmerit decision denying
reconsideration.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a). On appeal, appellant argued that the Office did not properly
consider the medical evidence in the case.1
1

The Board notes that this appeal, along with the record provided by the Office, contains medical evidence that
was submitted subsequent to the Office’s August 15, 2006 decision. Pursuant to 20 C.F.R. § 501.2(c) the Board is
unable to consider this evidence, as it was not part of the record at the time the Office made its final determination.

FACTUAL HISTORY
On July 25, 2001 appellant, then a 32-year-old mail handler, filed a claim for traumatic
injury, Form CA-1, alleging that she sustained an injury to her right arm and elbow when she
was picking up and placing sacks into a container. The Office accepted her claim for right arm
and shoulder strain.
On June 21, 2005 appellant filed a request for a schedule award.2 She attached an
attending physician’s report, Form CA-20, from Dr. Jean Simard, a Board-certified orthopedic
surgeon. In the April 27, 2005 report, Dr. Simard diagnosed right shoulder impingement and
reported that appellant had undergone arthroscopy and acromioplasty on her right shoulder on
October 5, 2004. He indicated that the effects of appellant’s injury were not expected to be
permanent, but stated that she was only allowed to lift 30 pounds on a continuous basis and
40 pounds intermittently.
On June 28, 2005 the Office requested a more detailed assessment of appellant’s
permanent impairment from Dr. Simard. In a report dated July 6, 2005, Dr. Simard stated that
appellant had done very well following her surgery and had reached maximum medical
improvement by April 26, 2005. He found that she had full strength and range of motion and no
atrophy in her right shoulder, though she did have pain with too much overhead lifting.
Dr. Simard stated that, according to the American Medical Association, Guides to the Evaluation
of Permanent Impairment, appellant had no permanent impairment in her right shoulder, though
she was under continuing work restrictions for overhead lifting.
On August 17, 2005 appellant’s record was referred to the Office medical adviser
Dr. Harry L. Collins, a Board-certified orthopedic surgeon, who found that appellant had no
permanent partial impairment of her right arm. Dr. Collins noted that Dr. Simard had found
maximum medical improvement as of April 26, 2005 and had pointed to no objective evidence
of impairment.
By decision dated August 19, 2005, the Office denied appellant’s request for a schedule
award on the grounds that the medical evidence provided by her treating physician established
that she did not have a permanent impairment of her right arm.
On August 2, 2006 appellant requested reconsideration of the Office’s decision on the
basis of a July 31, 2006 medical examination. She stated that Dr. Simard had requested
“necessary documents to resubmit the updated information” and asked that the Office give him
time to submit this information. Appellant attached a duty status report, Form CA-17, prepared
by Dr. Simard on July 31, 2006, which renewed appellant’s working restrictions of 30 pounds of
lifting on a continuous basis and 40 pounds on an intermittent basis.
By nonmerit decision dated August 15, 2006, the Office declined to conduct a merit
review of its August 19, 2005 decision. It found that a reconsideration of the case was not
warranted based on the evidence that appellant had submitted. The Office found that the duty
2

Appellant previously filed a claim for a schedule award for her right arm on April 30, 2002. The claim was
denied on October 3, 2002 and reconsideration of the decision was denied on June 23, 2003.

2

status report from Dr. Simard was irrelevant because it did not indicate whether appellant had a
permanent partial impairment. It also found that the request to give Dr. Simard more time to
submit additional information was not sufficient to reopen the case for review. The Office noted
that appellant had not argued that the previous decision contained an error of fact or law.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the
discretion to reopen a case for review on the merits.3 Section 10.606(b)(2) of Title 20 of the
Code of Federal Regulations provides that the application for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that either: (i) shows that
the Office erroneously applied or interpreted a specific point of law; (ii) advances a relevant
legal argument not previously considered by the Office; or (iii) constitutes relevant and pertinent
new evidence not previously considered by the Office.4 Section 10.608(b) provides that, when
an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.5
ANALYSIS
The Office denied appellant’s claim for a schedule award for her right arm on August 19,
2005 on the grounds that the medical evidence established that she had no permanent impairment
of her right arm. The Board finds that appellant’s request for reconsideration met none of the
regulatory requirements for a review of the merits of this decision.
Appellant’s August 2, 2006 request for reconsideration did not allege that the Office
erroneously applied or interpreted a specific point of law and did not advance a relevant legal
argument not previously considered by the Office. She is thus not entitled to further review on
the merits of her case under the first two sections of 10.606(b)(2).6 Though appellant stated that
new medical evidence formed the basis for reconsideration, the report she submitted with her
request was irrelevant: Dr. Simard’s July 31, 2006 report did not indicate a change in her
condition or discuss whether she had a permanent partial impairment of her right arm. In her
request for reconsideration, appellant asked that the Office provide Dr. Simard time to submit
additional information. The Board finds that the Office is not required to hold a record open for
evidence and cannot make a determination about whether to reopen a case for review based on
the evidence that is not before it. As there was no relevant and pertinent new evidence for the
Office to consider, appellant was not entitled to review under the third section of 10.606(b)(2).7

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

6

Id. at § 10.606(b)(2)(i) and (ii).

7

Id. at § 10.606(b)(2)(iii).

3

Because appellant did not meet any of the statutory requirements for a review of the
merits of her claim, the Office properly denied her August 2, 2006 request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 15, 2006 is affirmed.
Issued: April 23, 2007
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1029
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On April 14, 2020 appellant, through counsel, f iled a timely appeal from a March 12, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On February 16, 2018 appellant, then a 49-year-old management assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 12, 2018 she experienced stress, anxiety,
nausea, and depression while in the performance of duty when her second-line supervisor informed
her that she was referenced in “graphic sexual harassment material.” She noted that she had also
received a death threat in August 2017. Appellant stopped work on February 14, 2018.
In a development letter dated February 23, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. It also requested that she clarify whether she was claiming an occupational disease or
a traumatic injury. OWCP afforded appellant 30 days to respond.
In a March 23, 2018 response, appellant related that, in her position as secretary treasurer
of the local union, she had uncovered questionable financial actions taken by the union. 3 An
outside audit had revealed improprieties and the union had been placed under Trusteeship.
Appellant alleged that, when officials came to assume control over the union, the union president,
R.R., yelled that it was because appellant was “f**king” those higher-ups in rank and “sleeping
around with them.” R.R.’s associates, C.L., B.S., and E.C., agreed with him and began to spread
this rumor throughout the office. Employees who were angry about the audit posted falsified
minutes of union meetings and a photograph of appellant from Facebook on bulletin boards at
work. Appellant also alleged that they vandalized her vehicle at work. Coworkers that appellant
did not know approached her and asked if she was sleeping with the man who took over the union.
Appellant further asserted that on August 17, 2017 someone had placed a death threat on
her office desk threatening her and her family and accusing her of being a “snitch b***h.” Her
home was vandalized with shattered glass bottles. Appellant sold her house quickly at a reduced
price because she was afraid. She further asserted that on February 12, 2018 her second-line
supervisor, S.B., called her into his office and informed her that “some extremely vulgar/graphic
images of pornography” altered to resemble her had been placed in various locations at work.
Appellant’s cellphone number was next to the face on the image with instructions to call the
number for a “good time.”
Appellant related that she had filed an Equal Employment Opportunity (EEO) complaint
after receiving the death threat. The Criminal Investigation Division (CID) and military police
(MP) had investigated the threat. They found that some parts of her claim did not deal with
employing establishment issues.
In a March 29, 2018 statement, appellant advised that her claim was for an occupational
disease rather than a traumatic injury. She attributed her condition to harassment, sexual
3

Appellant also submitted medical evidence in support of her claim.

2

harassment, a hostile work environment, death threats, vandalism, slander, and defamation of
character.
Thereafter, OWCP received a September 14, 2017 closed investigation report from the CID
of the employing establishment. M.L., the investigator, advised that an individual had placed a
letter on appellant’s desk, noting that “snitches get stitches” and threatening her and her family.
The investigator indicated that appellant “believed [that] the letter and other harassing incidents
were due to [appellant’s] reporting the misuse of [u]nion [f]unds,” but did not know who had put
the letter on her desk. Appellant gave M.L. a flyer showing a social media post accusing her of
making false accusations about the union after partying with union members. M.L. noted that the
former union president had been interviewed about the letter, but could not provide any
information. The investigator advised that the investigation was closed as no “logical leads or
suspects have been discovered….”
In a witness statement dated September 28, 2017, L.P. related that, during a union meeting
on July 6, 2017, R.R. had used profanity and accused appellant of sleeping with another individual.
In a February 6, 2018 e-mail, P.K. confirmed that on July 6, 2017 R.R. had used profanity and
vulgarity regarding appellant.
In a January 11, 2018 interrogatory, appellant related that on July 5, 2017 the local union
had been put under trusteeship after she had requested an external audit that found a
misappropriation of funds. Affected individuals had spread lies about her and placed pictures on
a bulletin board on August 10, 2017. Appellant reported the incident to her supervisor, S.S., who
tried to ascertain whether cameras covered the area. The plant manager, C.S., advised her that it
was a union matter and ignored her concerns. On August 14, 2017 an employee appellant did not
know yelled at her and asked if she was “f**king” the new union leader. On August 17, 2017 at
the start of her work shift, she found a death threat saying that snitches get stitches, that she and
her family would pay, and that she should die because she was a “snitch b***h.” Appellant did
not know who had left the threatening letter on her desk. She immediately reported the incident
to her supervisors.
On February 13, 2018 M.P., the employing establishment commanding officer, partially
dismissed appellant’s September 28, 2017 discrimination complaint. He found that the employing
establishment was not the proper agency for the incidents that had occurred at union meetings on
July 6 and 18, 2017 as well as an August 8, 2017 occurrence when a union vice president had
yelled at her and used profanity outside the workplace as the matters arose out of union concerns.
M.P. also dismissed appellant’s claim that she had to sell her residence on January 10, 2018 due
to vandalism as she had not shown damages by the employing establishment. He noted that an
investigation was pending into the February 12, 2018 placement of a pornographic flyer at work
with her name and cellphone number.
In an undated statement received on April 2, 2018, appellant related that, when she started
work in 2010, G.S., a coworker, had spread rumors that she had worked as a stripper and was a
kind of prostitute of the former manager. G.S. and C.H. had complained about what she wore to
work and her supervisor sent her home to change clothes. In 2012, appellant had undergone
treatment for cancer and G.S. had asserted that she was disgusting and leaving hair in the restroom.
G.S. made a hurtful comment after the death of her brother. On May 3, 2017 appellant requested

3

her supervisor’s help processing a document. When she returned to the office, G.S. and others
thought that it was unfair that she was being trained to process documents accurately.
In an April 27, 2018 letter, OWCP advised appellant that it was adjudicating her claim as
an occupational disease claim. It again requested that she provide the evidence necessary to
establish her claim as set forth in its February 23, 2018 development letter.
In a June 12, 2018 development letter, OWCP requested that the employing establishment
provide comments from a knowledgeable supervisor regarding the accuracy of appellant’s
allegations and statements from the individuals referenced in the allegations, including G.S., R.R.,
C.L., B.S., and E.C. It further requested that it clarify whether she was on official time for the
July 6, 2017 union meeting or any of the other dates that involved union matters.
In a June 27, 2018 response, the employing establishment maintained that appellant’s
issues had begun over union matters and, thus, it had no authority to take corrective measures. It
noted that it was unaware of the findings of the CID, but that “no person was culpable in any
wrong-doing based on her allegations.” The employing establishment enclosed statements with
its response.
In a June 25, 2018 statement, C.L. advised that she was not at the July 6, 2017 union
meeting and had no knowledge of false union minutes posted on a bulletin board.
R.R. submitted a June 21, 2018 statement denying he was at the July 6, 2017 meeting and
advising that he had no knowledge of anyone placing union information on a bulletin board at
work. He indicated that he did not know whether appellant had used official time for the July 6,
2017 union meeting or other union activity.
In an undated statement, B.S. asserted that R.R. had not raised his voice or accused her of
sexual impropriety. He denied that anyone had posting false minutes of union meetings on the
bulletin board. B.S. also denied using vulgarity in reference to appellant.
In a June 28, 2018 statement, R.V. advised that on July 10, 2017 appellant had notified her
that “somebody had posted something bad about [appellant] on the bulletin board” and that R.R.
had stated inappropriate things about her at a union meeting. She did not want to file a complaint.
R.V. advised her to contact C.S., the plant manager. C.S. had informed her that he could
investigate who posted something on a bulletin board if she provided names, but that he had no
control over things that took place in union meetings. Appellant did not want to give the
individuals’ names.
By decision dated July 12, 2018, OWCP denied appellant’s emotional condition claim. It
found that she had not established any compensable employment factors.
On July 21, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an incident report dated September 18, 2018, appellant related that her coworker’s car,
which she had driven to work, had been vandalized in the parking lot. The officer noted that the

4

coworker believed that it had been vandalized because appellant had been driving it as she had
previously received threats due to whistleblowing in connection with union activity.
On December 7, 2018 appellant submitted a time and attendance screenshot, which she
asserted showed that she was in regular work status and not on leave or on official time on
August 17, 2017 and February 12, 2018.
A telephonic hearing was held on December 14, 2018. Appellant’s representative asserted
that she had experienced retaliation after reporting misconduct. He noted that on February 10,
2018 her supervisor told her that material “offensive to any person” had been found and distributed
to multiple locations throughout the base. Appellant also received death threats and had her car
vandalized. He related that she was at work and was not conducting union matters or on official
time when the harassment, death threat, and car vandalism had occurred. Appellant testified that,
on August 17, 2017 S.S., her first-line supervisor, had called security about the death threat. The
MPs arrived and turned the case over to the CID because it involved a death threat. Appellant had
not experienced problems prior to reporting the misappropriation of funds, so she believed that the
incidents were connected. The union vice-president made inappropriate comments to her on
August 8, 2017 after work hours, but on the premises of the employing establishment. Coworkers
heard rumors that appellant was sleeping around. A coworker’s car was vandalized in
August 2018 on base after she drove the vehicle. G.S., a coworker, spread rumors that appellant
had been a former manager’s private stripper. Appellant related that she saw R.R., the former
union president, every day because he worked in a nearby cubicle. She asserted that, when she
returned to work after being off due to stress, the pictures of her were still being passed around the
office.
Following the hearing, appellant submitted a copy of the threatening letter and the
pornographic photographs. She also submitted an August 17, 2017 e-mail from R.S.,4 the plant
manager, advising that on that date a note had been left on an employee’s computer threatening
the employee and family, and that information about the employee had also been placed on an
official bulletin board in violation of rules and policy. R.S. advised that an investigation was
currently being conducted to find the person or persons responsible.
On August 17, 2017 S.S. advised that on that date appellant had showed her a paper that
contained “clearly a written threat of harassment stating harm to [appellant] and her family.” She
had called the MPs and also emergency personnel because appellant required medical attention.
The MPs had contacted CID because the threat was “above what he is allowed to process.” The
CID agent had possession of a picture of appellant with a harassing caption from the union bulletin
board.
In a February 13, 2018 e-mail to the employing establishment, R.S. advised that
pornographic images of an employee had been placed at multiple locations throughout the
workstation. He indicated that the conduct would not be tolerated and was being investigated.

4

R.S. is also referred to in the record by his nickname, C.S.

5

By decision dated May 10, 2019, OWCP’s hearing representative affirmed the July 12,
2018 decision, finding that the events that appellant had established as factually occurring
pertained to union matters unrelated to the performance of her federal work duties.
On December 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated March 12, 2020, OWCP denied modification of the May 10, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, 6 including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability f or work for which he or she
claims compensation is causally related to that employment injury. 7 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.8
To establish an emotional condition in the performance of duty, a claimant must submit:
“(1) factual evidence identifying an employment factor or incident alleged to have
caused or contributed to his or her claimed emotional condition; (2) medical
evidence establishing that he or she has a diagnosed emotional o r psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the
accepted compensable employment factors are causally related to the diagnosed
emotional condition.”9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable. 10 However, disability is not compensable when it results from factors such as an

5

Supra note 2.

6

S.S., Docket No. 19-1021 (issued April 21, 2021); O.G., Docket No. 18-0359 (issued August 7, 2019); J.P., 59
ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
7

S.S., id.; G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

20 C.F.R. § 10.115; M.K., Docket No. 18-1623 (issued April 10, 2019); Michael E. Smith, 50 ECAB 313 (1999).

9

See S.K., Docket No. 18-1648 (issued March 14, 2019); Donna Faye Cardwell, 41 ECAB 730 (1990).

10

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).

6

employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur. 12
Mere perceptions of harassment are not compensable under FECA. 13
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 14 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 15
However, the Board has recognized an exception to this general rule when employees
performing representational functions, which entitle them to official time, are injured when in the
performance of duty. 16 The underlying rationale for this exception is that an activity undertaken
by an employee in the capacity of a union official may simultaneously serve the interest of the
employer.17 OWCP’s procedures indicate that representational functions include authorized
activities undertaken by employees on behalf of other employees pursuant to such employees’
right to representation under statute, regulation, executive order, or terms of a collective bargaining
agreement.18
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 19 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

11

Lillian Cutler, id.

12

S.L., Docket No. 19-0387 (issued October 1, 2019); S.B., Docket No. 18-1113 (issued February 21, 2019).

13

Id.

14

R.L., Docket No. 18-1375 (issued May 1, 2019); Jimmy E. Norred, 36 ECAB 726 (1985).

15

R.L., id; J.G., Docket No. 17-1948 (issued September 13, 2018).

16

J.G., id.; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing activities
related to the internal business of a labor organization such as soliciting new members or collecting dues are not
considered to be in the performance of duty. The singular fact that one is on paid official time for union representation
is not enough to establish that every interaction during such official time is within the performance of duty).
17

J.G., id.; Marie Boylan, 45 ECAB 338 (1994).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16(b) (July 1997).

19

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., supra note 6.

7

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. 20
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has not attributed her condition to the performance of her regularly or specially
assigned duties under Cutler.21 Instead, she maintained that she experienced harassment at work
after she had reported financial impropriety by the union in her role as union secretary and
treasurer.
There is no dispute that on August 17, 2018 someone placed a threatening letter on
appellant’s work desk. Appellant’s supervisor confirmed that appellant had received the
threatening letter and called the MPs, who contacted the CID. The Board has held that verbal and
written threats, when sufficiently detailed by the claimant and suppo rted by evidence, may
constitute compensable employment factors. 22 Appellant has established with corroborating
evidence that she received written threats made against her and her family. The Board has
recognized the compensability of threats when the factual aspects of such claimed threats are
established. 23 The Board finds that the letter left on appellant’s desk, which threatened her with
death and also threatened her family, rises to the level of a credible bodily threat. 24 Consequently,
the Board finds that she has established a compensable employment factor with regard to the death
threat.25
Appellant also attributed her condition to the placement of pornographic pictures
purporting to be of her, noting her cellphone number, in multiple locations around her worksite on
February 12, 2018. 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.26 A claimant, however, must substantiate allegations of harassment and discrimination with
probative and reliable evidence. 27
Appellant maintained that on February 12, 2018 her second-line supervisor, S.B., told her
that vulgar and graphic images altered to resemble her had been placed throughout the work
20

Id.

21

Supra note 11.

22

J.W., Docket No. 17-0999 (issued September 4, 2018).

23

See K.W., Docket No. 20-1504 (issued July 30, 2021); Z.S., Docket No. 16-1783 (issued August 16, 2018).

24

See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant
that he would be “among the nonliving” was a credible bodily threat directed at the claimant).
25

See J.Z., Docket No. 19-1156 (issued July 28, 2020).

26

See M.S., Docket No. 19-1589 (issued October 7, 2020).

27

See A.F., Docket No. 29-0525 (issued September 14, 2020); Robert Breeden, 57 ECAB 622 (2006).

8

location. In a February 13, 2018 e-mail to the employing establishment, R.S., the plant manager,
advised that pornographic pictures had been placed throughout work and asserted that the conduct
would not be tolerated. While appellant expressed her belief that the images were placed around
work as retaliation for union whistleblowing activities, there is no evide nce of record from the
employing establishment identifying the perpetrator. The incident occurred while appellant was
performing her employment duties rather than union activities and the images were placed
throughout the work location. The evidence factually supports that a coworker placed graphic and
vulgar images of a sexual nature purporting to be of appellant around her work location and, thus,
she has established a compensable work factor. 28
Appellant further attributed her condition to R.R. yelling at her and accusing her of sleeping
with the new union head at a July 6, 2017 union meeting. She related that she had uncovered
financial irregularities and had called for an outside audit of the union and , as a result, the union
had been placed under Trusteeship. When officials arrived to take control of the union, R.R. yelled
at her and used profanity. Appellant maintained that on August 10, 2017 union members angry
about the audit had posted false union minutes and photographs of her on the bulletin board at
work. She advised that R.R.’s friends spread rumors about her around the office. Appellant has
not alleged that she was performing representational functions or was on official union time at the
time of these incidents. As there is no connection between these incidents and her employment,
the actions taken by the union members in reaction to the investigation and audit did not occur in
the performance of duty and are not compensable under FECA. 29
Appellant maintained that on July 18, 2017 her car was scratched and that on
September 18, 2018 a coworker’s car that she had driven was vandalized. She also asserted that
her home was vandalized. Appellant, however, has not submitted any evidence establishing that
these incidents occurred as part of her employment duties or evidence that the vandalism was the
result of harassment by coworkers. 30 Thus, she has not established a compensable work factor.
Appellant also maintained that a coworker had approached her and asked her about rumors
of a sexual nature circulating about her and that after work on August 8, 2017 B.S. called her a
whore and liar. She further alleged that a coworker, G.S., had accused her of being a stripper, told
others that the hair in the restroom was from her and that she was disgusting, attacked her for
speaking with her supervisor for guidance, complained about her work clothes, and made an
unkind comment when her brother passed away. Appellant, however, has not provided any
evidence such as witness statements supporting her allegations of harassment by either of the
unknown coworkers, B.S. or G.S.31 Consequently, she has not established a compensable work
factor with respect to these allegations. 32

28

See I.D., Docket No. 16-0581 (issued December 12, 2016).

29

Id.

30

See J.B., Docket No. 070664 (issued September 13, 2007).

31

Id.

32

See L.S., Docket No. 18-1471 (issued February 26, 2020); S.B., Docket No. 11-0766 (issued October 20, 2011).

9

The case will, therefore, be remanded for an evaluation of the medical evidence to
determine whether appellant has established an emotional condition causally related to the
compensable employment factors. 33 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proc eedings
consistent with this decision of the Board.
Issued: March 18, 2022
Washington, DC

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

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

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

33

See D.B., Docket No. 19-1310 (issued July 21, 2020).

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1307
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 30, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 18, 2021 appellant, then a 50-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 he overstretched the ligaments in his
neck and left arm when torquing drone shafts while in the performance of duty. He asserted that
he experienced extreme pain from the base of his cranium to the tips of the fingers on his left hand.
On the reverse side of the claim form, C.S., an employing establishment supervisor, contended
that appellant’s condition may not have been the result of a traumatic incident. Appellant did not
stop work.
In an attached statement, C.S. further explained that appellant called out of work on
January 28 and 29, 2021 due to shoulder pain and was advised to return to work with a physician’s
note indicating that it was safe for him to return to his regular duties. The following day, appellant
reported that his physician held him out of work February 1 through 5, 2021. On February 8, 2021
he returned to work with a physician’s note releasing him to full duty. However, later that day, at
2:50 p.m., appellant asserted that he reinjured his shoulder and stopped work.
In February 23, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and requested a narrative medical report from his treating physician containing a detailed
description of findings and a diagnosis, explaining how his work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant explained that on January 28, 2021 he was installing a
right-sided engine driveshaft, which required him to contort the left side of his body and lean into
the engine in order to reach the bolts and nuts. He related that he felt a click in his neck and
shoulder, followed by a sharp pain in his left arm, shoulder, and neck. Appellant sought emergency
treatment that night and notified his supervisor the following morning. He noted that he attempted
to return to work one week later and experienced excruciating pain while completing another drive
shaft. Appellant recounted that he immediately notified his supervisor and sought additional
medical care.
In a return to work note, Sherri McCarty, a nurse practitioner, indicated that she held
appellant off from work until further notice.
By decision dated April 1, 2021, OWCP accepted that the January 29, 2021 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that he had not met the requirements
to establish an injury as defined by FECA.

2

On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive evidence. On April 7, 2021 appellant sought treatment with
Dr. Maxsimo Torres, a family medicine specialist, with complaints of left shoulder and neck pain
with numbness related to a work injury he sustained while installing a drive shaft. Dr. Torres
performed a physical examination and documented tenderness of the left acromioclavicular (AC)
and glenohumeral joints, bicipital groove, and shoulder. He diagnosed joint pain, osteoarthritis,
adhesive capsulitis, and articular cartilage disorder of the left sh oulder and recommended an
orthopedic evaluation, medication, an x-ray of the cervical spine, magnetic resonance imaging
(MRI) scan of the left shoulder, and a rheumatology panel.
In an attending physician’s report (Form CA-20) also dated April 7, 2021, Dr. Torres noted
that appellant sustained an injury to his left shoulder on January 29, 2021. He checked a box
marked “Yes” indicating that the condition was caused or aggravated by an employment activity.
By decision dated August 20, 2021, OWCP’s hearing representative modified the April 1,
2021 decision, finding that appellant had established a medical diagnosis in connection with the
accepted January 29, 2021 employment incident. However, the claim remained denied, because
the evidence of record was insufficient to establish causal relationship between the accepted
January 29, 2021 employment incident and his diagnosed left shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 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. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that 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. The second component is
3

Id.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the claimant.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.
In his narrative report dated April 7, 2021, Dr. Torres noted that appellant related a history
of an injury to his left shoulder while installing a drive shaft at work on the date of the alleged
injury. He diagnosed joint pain, osteoarthritis, adhesive capsulitis, and articular cartilage disorder
of the left shoulder. Dr. Torres did not, however, offer an opinion as to whether these diagnosed
conditions were causally related to the accepted employment injury. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 11 Therefore, Dr. Torres’ April 7, 2021
report is insufficient to establish appellant’s claim.
In a Form CA-20 dated April 7, 2021, Dr. Torres noted appellant’s January 29, 2021 left
shoulder injury. He checked a box marked “Yes” to indicate that the condition was caused or
aggravated by an employment activity. While the Form CA-20 provided an affirmative opinion
which supported causal relationship, Dr. Torres did not provide a pathophysiological explanation

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See S.S., Docket No. 21-0837 (issued November 23, 2021); J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

as to how the accepted incident either caused or contributed to appellant’s diagnosed conditions. 12
The Board has held that when a physician’s opinion as to the cause of a condition consists only of
a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 13 Therefore, the April 7, 2021 Form CA20 is also insufficient to establish appellant’s claim.
The remaining medical evidence of record consists of a return-to-work note signed by a
nurse practitioner. Nurse practitioners are not considered “physician[s]” as defined under FECA
and thus their reports do not constitute competent medical opinion evidence.14
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted January 29, 2021 employment incident, the Board finds
that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.

12

Id.; J.G., Docket No. 20-0009 (issued September 28, 2020).

13

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).
14

Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 10 at Chapter 2.805.3a(1) (January 2013); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); see also D.S., Docket No. 19-1657 (issued July 20, 2020)
(nurse practitioners and registered nurses are not considered physicians under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6