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

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

Docket No. 13-1820
Issued: February 18, 2014

Case Submitted on the Record

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

JURISDICTION
On July 30, 2013 appellant filed a timely appeal from a July 8, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this claim.2
ISSUE
The issue is whether appellant has established a recurrence of disability beginning
May 18, 2013 due to her accepted right shoulder and upper arm sprain.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its July 8, 2013 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

FACTUAL HISTORY
On August 18, 2007 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 3, 2007 she was lifting trays and felt a sharp pain in
her right shoulder. By decision dated October 10, 2007, OWCP accepted the claim for sprain of
the right shoulder and upper arm.3
On December 12, 2007 appellant accepted a limited-duty position as a modified carrier
effective December 22, 2007. The position provided restrictions pertaining to both of appellant’s
right shoulder claims, File No. xxxxxx957 and File No. xxxxxx602. Limitations included no
lifting/carrying more than 10 pounds, no continuous reaching above the shoulder for one hour a
day, lifting/carrying less than 10 pounds for up to four hours a day, pulling/pushing for two hours
a day and driving for three and one half hours a day. Appellant’s restrictions were provided by
Dr. Robert M. Maywood, a Board-certified orthopedic surgeon, in a November 7, 2007 duty
status report (Form CA-17).
In a May 28, 2013 duty status report, Dr. Maywood reported that appellant sustained a
right shoulder and rotator cuff tear from reaching/casing mail as a result of injuries sustained on
January 6, 2005 and August 3, 2007. He provided appellant with right arm and shoulder
restrictions due to right shoulder pain and limited range of motion as a result of a right rotator
cuff tear. Restrictions included no lifting/carrying over five pounds for up to 4 hours a day, no
continuous reaching above the shoulder for 30 minutes a day, pushing/pulling for 1 hour a day,
driving for 1 hour a day and no use of a bag on the right shoulder.
In a May 30, 2013 e-mail, the employing establishment reported that there was no work
available for appellant as long as she had her restrictions. The e-mail contained a handwritten
note indicating June 29 through July 12, 2013.
On May 30, 2013 appellant filed a claim for compensation (Form CA-7) for leave
without pay for the period May 18, 2013 onward. On her time analysis (Form CA-7a), appellant
noted the reason for leave as no work available.
By letter dated June 4, 2013, OWCP noted receipt of appellant’s claim for wage-loss
compensation and informed her that it would be treated as a claim for a recurrence of disability.
Appellant was advised of the medical and factual evidence required to support her recurrence
claim and provided a questionnaire for completion.
On June 11, 2013 appellant responded to OWCP’s questionnaire. She stated that
management had forced her to work beyond her restrictions which caused her a recurrence of
disability. Appellant was often asked to deliver mail, lift, reach and drive continuously which
were beyond her specified restrictions. She further stated that she had a small retear of her
rotator cuff in 2007 and never fully recovered. Since then, appellant’s incapacity, with regards to
3

The Board notes that appellant had a prior January 6, 2005 traumatic injury claim which was accepted for
calcifying tendinitis of right shoulder, right shoulder strain and subsequent right shoulder arthroscopy on June 2,
2005, OWCP File No. xxxxxx957. File No. xxxxxx957 was combined with this claim, File No. xxxxxx602 into
master File No. xxxxxx602.

2

the original injury, increased causing a greater amount of disability. In support of her claim, she
submitted various treatment reports from Dr. Maywood dated April 11, 2005 to June 7, 2012 and
the December 12, 2007 limited-duty job assignment for a modified carrier.
By decision dated July 8, 2013, OWCP denied appellant’s recurrence claim on the
grounds that the medical evidence failed to establish that her alleged disability and consequential
conditions were due to a material change/worsening of her accepted work-related conditions. It
further found that appellant’s claims for wage-loss compensation from May 18, 2013 onward
was denied.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.4 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force.5
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.6
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that a claimant furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that, for each period of disability claimed, the disabling condition is causally related to the
employment injury and supports that conclusion with medical reasoning.7 Where no such
rationale is present, the medical evidence is of diminished probative value.8

4

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).
Kenneth R. Love, 50 ECAB 193, 199 (1998).
7

Ronald A. Eldridge, 53 ECAB 218 (2001).

8

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

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ANALYSIS
OWCP accepted appellant’s claim for right shoulder and upper arm sprain. On May 30,
2013 appellant filed a claim for wage-loss compensation beginning May 18, 2013 and onward.
She has the burden to provide medical evidence establishing that she was disabled on May 18,
2013 due to a worsening of her right shoulder and upper arm sprain or a change in her job duties
such that she was unable to perform her light-duty work.
The Board finds that appellant has not submitted medical evidence in support of a change
in her injury-related condition beginning May 18, 2013. While appellant submitted a narrative
statement asserting that her condition had been aggravated by her work duties which were
beyond her restrictions, she has not submitted a medical report consistent with her assertions.
She submitted medical reports dated April 11, 2005 to June 7, 2012 from Dr. Maywood. These
reports are of no probative value as they document appellant’s condition and restrictions prior to
her May 18, 2013 date of disability. The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.9 As the medical reports predate
appellant’s May 18, 2013 disability, they fail to establish a change in the nature and extent of her
injury-related condition on or after that date.
The most recent duty status report submitted was a May 28, 2013 Form CA-17 from
Dr. Maywood which provided restrictions of no lifting/carrying over five pounds for up to 4
hours a day, no continuous reaching above the shoulder for 30 minutes a day, pushing/pulling for
1 hour a day, driving for 1 hour a day and no use of a bag on the right shoulder. He noted that
appellant’s right arm and shoulder restrictions were due to right shoulder pain and limited range
of motion as a result of a right rotator cuff tear.10 Dr. Maywood’s Form CA-17 fails to address a
worsening of appellant’s condition rendering her disabled beginning May 18, 2013. While he
slightly altered her work restrictions, he provided no opinion that she sustained a spontaneous
change in her medical condition resulting from her previous injury without an intervening injury
or new exposure.11 Dr. Maywood simply noted reaching/casing mail as the cause of injury with
no medical rationale. Moreover, he provided no opinion that appellant’s condition had worsened
due to working outside her restrictions or identified how she was required to work outside of her
restrictions. Dr. Maywood failed to provide a medical history, findings on physical examination
or state any opinion regarding the cause of appellant’s condition.12 As his report contains no
opinion regarding the cause of appellant’s disability beginning May 18, 2013, his report is
insufficient to support that appellant sustained a worsening of her condition.13
9

William A. Archer 55 ECAB 674, 679 (2004).

10

A rotator cuff tear has not been accepted by OWCP.

11

A.N., Docket No. 10-1830 (issued June 14, 2011).

12

S.S., Docket No. 07-579 (issued January 14, 2008).

13

See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting
causal relationship generally do not discharge a claimant’s burden of proof).

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Appellant has alleged that she sustained a recurrence of disability because she was
required to exceed her work restrictions. There is no evidence in the record to support her
assertion. Dr. Maywood provided a May 28, 2013 Form CA-17 with new restrictions but did not
explain the reason for the change or tie them to the accepted conditions. A May 30, 2013 e-mail
from the employing establishment stated that, due to appellant’s restrictions, there was no work
available.
Appellant failed to submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that she sustained a recurrence of
disability as of May 18, 2013 due to residuals of her accepted injury. Accordingly, she has not
met her burden of proof in establishing that she sustained a recurrence of her employment-related
disability as of May 18, 2013.14
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 did not meet her burden of proof to establish a recurrence
of total disability on or after May 18, 2013, causally related to her accepted employment injuries.

14

See supra note 4 and accompanying text.

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ORDER
IT IS HEREBY ORDERED THAT the July 8, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 09-673
Issued: October 26, 2009

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 January 9, 2009 appellant filed a timely appeal of the decision of the Office of
Workers’ Compensation Programs dated March 19, 2008 and the decision of the hearing
representative dated December 1, 2008 denying appellant’s claim for an emotional condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the
merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
On appeal, appellant alleges that the Office failed to consider her medical reports. She
also contends that the hearing representative erroneously found that she only took 12 days of
leave when she actually took off 3 months plus 12 days of leave. Finally, appellant contends that
the Office failed to consider a statement from Jacquin Sandoval that documented that she was
harassed at work.

FACTUAL HISTORY
On January 24, 2008 appellant, then a 45-year-old rural carrier filed a traumatic injury
claim for emotional distress which she attributed to issues with her supervisor. She noted that
she was unable to concentrate and was not sleeping. Appellant also listed depression, headache,
and clenching teeth, and noted that she had problems with her shoulder and hip. In a statement
on the claim form controverting her claim, her supervisor indicated that appellant never had any
problem with her working relationship with the supervisor until she was told that the supervisor
was going to testify against her in court.
By letter dated February 4, 2008, the Office asked appellant to submit evidence in
support of her claim.
In support of her claim, appellant submitted two certificates of health care provider under
the Family and Medical Leave Act of 1993 completed by Dr. Edward Chelist, a family
practitioner, noting that appellant was totally incapacitated and suffered from, inter alia,
fibromyalgia, depression and anxiety.1
By letter dated February 8, 2008, the employing establishment indicated that it was
controverting appellant’s claim as appellant has not submitted substantive medical evidence
supporting that the alleged working conditions and supervisor incident related to her complete
incapacitation or that this condition was caused in the performance of duty. In an accompanying
description of accident, the form indicates that on January 24, 2008 appellant alleged that she
was approached by her supervisor while in her case and was told to put up the new labels on her
route. At that time, appellant indicated that she became short of breath and anxious in her case.
In a statement dated February 8, 2008, John Gilliam, appellant’s supervisor, at this time,
indicated that on January 24, 2008 at approximately 7:40 a.m., appellant approached his desk and
started talking about her route. The supervisor indicated that after talking about five minutes, he
started going around to check on carriers. He noted that about 10 to 15 minutes later he came
back to his desk and there was a claim form on his keyboard from appellant. The supervisor
indicated that he spoke with appellant and that they completed the accident report before she left.
He noted that she did not return to work.
In a March 2, 2007 note, appellant stated that on that date she was filing a class action in
that on that date all auxiliary routes were told they would be taking their mail to the streets
beginning March 6, 2007 and that “no legitimate reason has been given for this action.” She
alleged that the carriers have to use their own vehicles for delivery and that there were no
accommodations for extra trays on the side or extra time allotted for delivery.

1

In an undated form received by the Office on January 29, 2008, Dr. Chelist indicated that appellant suffered
from stress, anxiety, depression and poor concentration and sleep. He noted that the duration of these conditions
was approximately one year but that it had worsened in the past one to two months. Dr. Chelist noted that appellant
was 100 percent incapacitated and was off work for at least 8 to 12 weeks. In a form dated February 3, 2008, he
found that appellant had fibromyalgia, depression, anxiety, diffuse pain and poor sleep which commenced on
January 25, 2008 and that appellant was to be off work until “at least” May 12, 2008.

2

Appellant also submitted an article entitled, “Question Box: Workplace Environment”
regarding appropriate actions a person should take if the person feels threatened at work.
In a February 12, 2008 note, Dr. Chelist noted that he had been treating appellant since
January 12, 2008 for what he believed to be fibromyalgia, or a combination of chronic, diffuse
pain, depression and insomnia. He indicated that he “believed this is probably related to, and
exacerbated by, a stressful work environment.” Dr. Chelist noted that he has referred her for
physical therapy and would like her to also have psychotherapy.
In a letter received by the Office on February 19, 2008, appellant indicated that when she
started working at the Pino station for the employing establishment she “was singled out by the
supervisor Frank Ortega as a focus of his attention for harassment for reasons unbeknownst to
me.” She alleged that he called appellant a “cabrona,” “hideous” and an “ass.” Appellant noted
that the supervisor cornered her in her case, swept mail off her case with his arm, and announced
to other employees, “You do not want to be as slow as [appellant].” She noted that he would not
schedule her for work even though she had seniority. Appellant noted that other employees
engaged in a fight on the workroom floor that she attributed to a hostile atmosphere at work and
management’s lack of training in addressing personnel issues. She noted that a case had been
filed against her by the postal inspection services in District Court that alleged that she had
defrauded the Housing Department, and she alleged these charges were brought shortly after she
came to the attention of the inspection service for reporting the hostile work environment.
Appellant indicated that this case was still pending and that the employing establishment
distorted the facts. She also noted that she has been followed on her route by different postal
authorities and that the station manager went on her route with her. Appellant indicated that she
has been accused of misdelivery on routes that were carried by several different carriers. She
noted her supervisor has found minor infractions almost every day. Appellant also noted that her
route was evaluated by the station manager and found to be undervalued, so she was not slow but
was not given enough time to complete the route. She stated that on the day she filed her claim,
she found out that her present supervisor was going to be testifying against her in District Court
and that this was the “proverbial ‘straw that broke the camel’s back.’” Appellant noted that she
became extremely anxious and developed a very bad headache and became “very fearful of
every day ordinary work being turned into disciplinary action at every turn.” She alleged that the
employing establishment “wants to fire [her] for making allegations about the hostile and violent
work atmosphere, but I have done nothing to justify being fired.”
Appellant also submitted notes that appear to be journal entries from January through
February 2007 documenting issues with job assignments, issues with manager, and incidents of
yelling.
The record also contains an inspector’s report from the employing establishment’s Office
of Inspector General noting that it has referred appellant to the Sandoval County District
Attorney’s Office for prosecutorial consideration for underreporting income for the Department

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of Housing and Urban Development’s (HUD) Rental Assistance Program.2 The agent noted that
the joint investigation determined that appellant received $7,242.00 in excess housing benefits
under HUD’s Section 8 Housing Choice Voucher Program between March 2005 and
March 2006 due to unreported and underreported income.
By decision dated March 19, 2008, the Office denied appellant’s claim as the evidence
failed to establish that she sustained an emotional condition as alleged which was caused during
the performance of her federal duties.
On April 8, 2008 appellant requested an oral hearing.
In a letter to the Postmaster General dated June 27, 2007, appellant alleged that the
employing establishment “trumped up charges with the District Attorney, indicted her and are
trying to convict her of a crime she did not commit” in retaliation for her reporting the beginning
of a violence in the workplace issue. She alleged that the employing establishment indicated that
she had underreported her income by $33,000.00, when her total income for 2005 was
$22,000.00. Appellant also alleged that she had a break in service in June 2005, which the
employing establishment covered up. She also contended, inter alia, that she had been called
names and belittled in front of her fellow employees, was starved out of work, and that
management singles her out for investigation. Appellant further alleged that she was not
assigned work as entitled by her seniority.
Appellant also submitted a statement written to the Postmaster General by Marion R.
Montano, a fellow employee. Ms. Montano alleged that appellant reported a violence in the
workplace issue and the employing establishment responded by initiating an investigation of her
housing situation and “trumped up charges with the District Attorney, indicted her and are trying
to convict her of a crime she did not commit.” She noted that the employing establishment, in
“an effort to get rid of appellant, “trumped her charges with the District Attorney and
erroneously reported that appellant underreported her income by $33,000.00 when her income
for 2005 was only $22,000.00. Ms. Montano also indicated that in June 19, 2007 a situation
developed in the workplace from when police were called when violence broke out between two
employees. She requested an investigation by the Postmaster General. Ms. Montano also wrote
a letter to Office indicating that appellant suffered from pain and anxiety due to the revelation
that her supervisor intended to testify against her on a matter that had nothing to do with her
employment. She also indicated that postal authorities followed appellant in a concerted effort to
harass and intimidate her, which caused anxiety and pain.
In a statement Joaquin Sandoval, indicated that, when Supervisor John Stout left and was
replaced by Frank Ortega, the environment at work became hostile and abusive. He noted the
hostility was directed towards appellant and himself. Mr. Sandoval noted that on several
2

In this report, the case agent was initiated as part of an ongoing collaborative effort between the employing
establishment and HUD to identify employees receiving excess housing assistance due to unreported or
underreported income. The employing establishment noted that appellant’s annual income is listed as $33,785.00,
but that she only reported $14,872.00 income to HUD. The case agent noted that appellant began work with the
employing establishment on March 19, 2005 at a starting salary of $16.24 per hour, that she received income every
two weeks with the exception of the period May 28 through June 10, 2005.

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occasions he heard Mr. Ortega making abusive demands of appellant. He noted that he would
tell appellant one day to take mail on the side and that the next day she would have to case it.
Mr. Sandoval also alleged that Mr. Ortega discussed appellant’s work performance with other
employees. He noted that, after Mr. Ortega left, the situation became better. Mr. Sandoval noted
that Mr. Ortega would say things such as “Don’t be as slow as [appellant]” and “You [appellant]
are not going to last.”
At the hearing held on August 14, 2007, appellant testified that she worked for the
employing establishment for almost three years as a rural carrier associate. She noted that her
primary duty was to case mail and to load a vehicle and take that vehicle to the streets and
deliver mail. Appellant indicated that, on January 24, 2008, she was told that her supervisor who
has previously been cordial, John Gillium, was going to testify against her in a court case with
the postal inspectors. When she confronted him she felt a sharp pain in her jaw and an upset
stomach. Appellant noted that the case has not gone to court yet, and that the supervisor was
removed as her supervisor because of the pending case. She indicated that she filed this claim
for an emotional condition as a result of that and many other things prior to that. Appellant
indicated that Supervisor Ortega screamed at her on the floor, flailed his arms and allowed two
or three other male employees to berate her on the floor. Mr. Ortega told others not to be as slow
as her. Appellant had another employee stick her finger in her face and scream at her. She
indicated that her supervisor never did anything to stop this. Appellant testified that she missed
maybe 10 to 12 days of work since January. She testified that even though she has the highest
seniority and should be working 40 hours a week, she is assigned between 28 to 30 hours a week.
Appellant’s friend, Inez Arroyo, also testified that she was retired from the employing
establishment. She testified that appellant was subjected to her supervisor calling her names,
calling her down on the working floor, and pushing her in her cage. Ms. Arroyo also noted that
the fight was due to the bad conditions at work which resulted in one employee putting her hands
around other person’s neck. She indicated that this hostile environment was made possible by
the way appellant was treated. Ms. Arroyo testified that there were special rules and disciplinary
actions that only applied to appellant.
Appellant also submitted a newspaper article dated July 13, 2003 and further medical
reports.
By decision dated December 1, 2008, the hearing representative denied appellant’s claim
as she had not met her burden to establish that she sustained an emotional condition in the
performance of duty.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.3 This burden includes the submission

3

Pamela R. Rice, 38 ECAB 838 (1987).

5

of detailed description of the employment factors or conditions which appellant believes caused
or adversely affected the condition or conditions for which compensation is claimed.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the coverage
of workers’ compensation. These injuries occur in the course of the employment and have some
kind of causal connection with it but nevertheless are not covered because they are found not to
have arisen out of the employment. However, when disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.5
Administrative and personnel matters, although generally related to the employee’s
employment are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.8
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.9 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.10 The issue is whether the claimant has submitted sufficient evidence
under the Act to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.11 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in

4

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
7

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

8

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

9

See Michael Ewanichak, 48 ECAB 364 (1997).

10

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

11

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

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fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Office and the Board.12
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
employment, it should then determine whether the evidence of record substantiates that factor.
When the matter asserted is a compensable factor of employment and the evidence of record
establishes the truth of the matter asserted, the Office must base its decision on an analysis of the
medical evidence.14
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to factors of her
federal employment.
Appellant alleged that she suffered from stress from various actions of management. She
objected to a management change wherein carriers with auxiliary routes were told that they
would be taking their mail to the streets. Appellant noted that she was followed on her route by
different postal authorities. She noted that she had been accused of minor infractions and
misdelivery of mail. Appellant claimed that her route was undervalued and that she did not have
enough time to complete her route. She contended that her seniority was not honored by
management when assigning routes. Although the handling of disciplinary actions and the
assignment of work duties are generally related to employment, they are administrative functions
of the employer and not duties of the employee. Absent error or abuse, these matters would not
be compensable.15 The Board finds that there is no evidence sufficient to establish error or abuse
of the employing establishment regarding the administrative matter of the assignment of work
duties.16 Furthermore, to the extent that appellant alleged that she was overburdened on her
route, she did not provide details about this allegation or supporting evidence to establish a
factual basis for this claim. With regard to appellant’s allegations against her supervisor
following her on her route and reprimanding her for minor infractions, generally complaints
about the manner in which a supervisor performs his or her duties or the manner in which a
supervisor exercises his or her discretion fall outside the scope of coverage provided by the Act.
This principle recognizes that a supervisor or manager must be allowed to perform his or her
12

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

13

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

14

Id.

15

Kim Nguyen, 53 ECAB 127 (2001).

16

Id.

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duties and employees will, at times, dislike the actions taken. Mere disagreement or dislike of
supervisory or managerial actions will not be compensable, absent evidence of error or abuse.17
Although Mr. Sandoval and Mr. Montano allege that appellant was treated particularly harshly
by her supervisor, their general allegations are insufficient to establish that appellant was treated
in an abusive manner by her supervisor in the monitoring of her duties.
Appellant also alleged that Supervisor Ortega would tell other employees not to be as
slow as her. In support of this allegation, appellant submitted a statement by Joaquin Sandoval
wherein he indicated that he heard Mr. Ortega say things like, “Do n[o]t be as slow as
[appellant]”; and “You [appellant] will not last.” Appellant correctly asserts that the hearing
representative did not specifically address Mr. Sandoval’s statement in her opinion. However,
the Board finds that even with Mr. Sandoval’s statement, appellant did not establish a
compensable factor of employment with regard to this matter. Mr. Sandoval did not provide
dates for the alleged mistreatment nor a description of specific circumstances. The Board has
weighed this evidence and concludes that it is insufficient to sustain corroboration of her
allegation.
Appellant also asserted that she was harassed by her supervisor. The Board has held that
actions of the employing establishment which the employee characterizes as harassment or
retaliation may constitute factors of employment giving rise to coverage under the Act.18 Mere
perceptions of harassment and retaliation are not compensable under the Act. To discharge her
burden of proof, appellant must establish a factual basis for her claim by supporting her
allegations of harassment with probative and reliable evidence.19 Appellant has not provided
probative evidence in support of her allegations of harassment. She alleges that she was called
“cabrona,” “hideous” and an “ass.” Appellant also alleged that management did not properly
control the other employees who berated her. There is no support in the record that the
supervisor actually called appellant these names or that other employees berated appellant.
Although Ms. Arroyo did testify at the hearing that appellant was physically pushed in her case
by her supervisor, there is no further support with regard to the date of this occurrence nor is it
clear that Ms. Arroyo actually observed the behavior or is merely repeating what appellant told
her.
Appellant also asserts that the employing establishment filed a case with the District
Attorney on “trumped up charges” alleging housing fraud and that when she discovered that her
supervisor was going to testify against her she became extremely stressed. The reporting of
appellant for failure to report her full income from the employing establishment to HUD is an
administrative matter and not a duty of the employee and is only considered compensable if the
employing establishment acted unreasonably or abusively.20 Although there may be some
dispute as to the amount of income that appellant did not report to HUD, it appears evident that
17

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006).

18

Tanya A. Gaines, 44 ECAB 923 (1993).

19

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008).

20

See Ronald K. Jablanski, 56 ECAB 616, 621 (2005) (use of photo on identification badge to make a positive
identification of person involved in theft of gift certificates did not constitute a compensable factor of employment).

8

there was underreported income and the employing establishment acted reasonably in making the
report. Although appellant testified that this District Court case was filed in retaliation for her
making allegations about a hostile and violent workplace, there is no persuasive evidence to
support this allegation. Mr. Montano’s statement does not involve first hand factual accounts of
what happened but rather her theories with regard to how she believed appellant was treated.
Accordingly, appellant has not established a compensable factor of employment with regard to
the filing of the housing fraud case.
The Board finds that between the testimony of Ms. Arroyo and appellant, it is established
that there was a fight on the workplace floor. This is not sufficient to establish a hostile work
place as the fight could have been caused by any number of factors. Furthermore, although
general allegations were made that this fight somehow involved appellant, it is not clear that this
fight had anything to do with appellant at all.
The Board notes that appellant submitted newspaper articles in support of her claim. The
Board has held that newspaper clippings are of no evidentiary value in establishing causal
relationship between a claimed factor and federal employment as such materials are of general
application and not specific to whether the specific condition claimed is related to the particular
employment factors alleged by the employee.21
With regard to appellant’s allegation that the hearing representative erred in finding that
she only took 12 days of leave for the injury as she was on leave from January 24 to May 10,
2008, the Board notes that appellant testified at the hearing that she missed about 10 to 12 days
since January 2008. Furthermore, this is not relevant to whether appellant established a
compensable factor of employment.
For the foregoing reasons, appellant has not established any compensable factors of
employment. Consequently, it is not necessary to review the medical evidence.22
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

21

Eugene Van Dyk, 53 ECAB 706 (2002).

22

See Margaret S. Krzycki, 43 ECAB 496 (1992) (where a claimant has not established a compensable
employment factor, the Board has held that it need not address the medical evidence of record.)

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 1 and March 19, 2008 are affirmed.
Issued: October 26, 2009
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.E., Appellant
and
DEPARTMENT OF AGRICULTURE,
SEQUOIA NATIONAL FOREST,
Portersville, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-649
Issued: October 21, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On January 28, 2013 appellant filed a timely appeal from an August 3, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying reconsideration of
previous decisions reducing appellant’s compensation based on her capacity to earn wages as a
telemarketer. The Board docketed the appeal as No. 13-649.
By decision dated December 14, 2004, OWCP reduced appellant’s compensation based
on her loss of wage-earning capacity (LWEC) in the constructed position of part-time
telemarketer working 20 hours a week. In a November 15, 2007 decision, it further reduced the
amount of compensation appellant was paid as it found that OWCP met its burden of proof to
show that the original LWEC was in error. In decisions dated November 12, 2008,
September 11, 2009 and November 2, 2010, OWCP denied modification of its decisions after
conducting a merit review.
On November 16, 2011 OWCP denied appellant’s request for reconsideration, finding
that it was untimely filed and failed to establish clear evidence of error. By decision dated
March 12, 2012, it vacated the November 16, 2011 reconsideration decision insofar as it found
appellant’s request untimely. OWCP then reviewed appellant’s request for reconsideration under

the standard for timely filed reconsideration requests and determined that the evidence and
argument submitted was insufficient to warrant review of the merits of the case.
By letter dated April 5, 2012, appellant again requested reconsideration. She challenged
the suitability of the position of telemarketer, contending that her commuting time was too long
based on the medical evidence, that she was incapable of performing the duties of the position
and that there were no positions available within the commuting distance allowed by her treating
physician. Appellant also alleged that the pay rate was improperly calculated as it was not based
on telemarketing positions in her commuting area. She submitted new medical evidence in the
form of a January 23, 2012 report by Dr. Michael L. Ball, an osteopath, wherein he indicated that
appellant has multilevel degenerative disc disease, that she will never be able to perform the
firefighting job she had at time of injury due to her original work-related back injury and also the
degeneration that has progressed due to the required surgery of her injury-related disc of L4-L5
and L5-S1 as well as other lumbar discs. Dr. Ball placed permanent restrictions on appellant,
including requiring frequent breaks so she can lie down and frequent position changes. In a
January 23, 2012 work capacity evaluation, he limited appellant’s commuting time to 30
minutes. Dr. Ball also noted that due to increased pain and muscle spasms, appellant should be
restricted to working five hours a day maximum. Appellant also submitted a duty status report
dated March 19, 2002, a portion of a labor market survey dated September 2, 2004, and a
medical report dated July 10, 2008. Thereafter, OWCP issued its August 3, 2012 decision
denying appellant’s request for reconsideration without conducting a merit review.
The Board has duly reviewed the matter and finds that the case is not in posture for
decision. As noted, OWCP issued formal decisions on appellant’s wage-earning capacity on
December 14, 2004 and November 15, 2007. Board precedent and OWCP procedures direct the
claims examiner to consider the criteria for modification of a LWEC determination when a
claimant requests resumption of compensation for total wage loss.1 While appellant used the
term reconsideration in his requests, he argued that the December 14, 2004 and November 15,
2007 decisions were in error and submitted additional medical evidence.2 The Board finds that
OWCP should have adjudicated the issue of modification of the LWEC determination.3 The
Board will therefore remand the case to OWCP for proper adjudication, to be followed by a de
novo decision to preserve appellant’s appeal rights.

1

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a)
(December 1995) (if a formal loss of wage-earning capacity is issued, the rating should be left in place unless the
claimant requests resumption of compensation for total wage loss, in which instance OWCP will need to evaluate
the request according to the customary criteria for modifying a formal loss of wage-earning capacity determination).
2

Once the wage-earning capacity of an injured employee is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was, in fact, erroneous.
Stanley B. Plotkin, 51 ECAB 700 (2000); see Federal (FECA) Procedure Manual, id. at Chapter 2.814.11
(October 2009).
3

F.B., Docket No. 09-99 (issued July 21, 2010).

2

IT IS HEREBY ORDERED THAT the August 3, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: October 21, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 08-387
Issued: June 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated March 7 and August 15, 2007, which terminated
her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective March 7, 2007 on the grounds that she no longer had any residuals or disability causally
related to her accepted right carpal tunnel syndrome and cubital tunnel syndrome; and
(2) whether she had any continuing employment-related residuals or disability after
March 7, 2007.
FACTUAL HISTORY
On December 6, 1996 appellant, then a 34-year-old mail processing clerk, filed a claim
for an occupational disease assigned number 09-0423792. On August 22, 1996 she first became

aware of pain in her right hand and arm which resulted from working on a machine and lifting
trays. By decision dated April 9, 1997, the Office denied appellant’s claim. Appellant did not
submit any medical evidence establishing that she sustained an injury in the performance of duty.
In an April 30, 1997 letter, appellant requested reconsideration. By decision dated
May 9, 1997, the Office set aside the April 9, 1997 decision, finding that appellant sustained an
injury in the performance of duty. On May 9, 1997 the Office also accepted appellant’s claim
for right carpal tunnel syndrome.1 On July 8, 1997 it authorized right carpal and ulnar tunnel
release which was performed on July 29, 1997 by Dr. Jerrold A. Laskin, an attending surgeon.2
By letter dated March 17, 2006, the Office requested that appellant submit a medical
report from an attending physician which addressed whether she had any continuing residuals or
disability causally related to her accepted condition. Also on March 17, 2006 the Office
accepted appellant’s claim for right cubital tunnel syndrome.
On March 27, 2006 appellant advised the Office that she was not under the care of any
physician. By letter dated April 7, 2006, the Office referred appellant, together with a statement
of accepted facts, the case record and a list of questions, to Dr. Mark J. Janicki, a Board-certified
neurologist, for a second opinion medical examination. Dr. Janicki was asked to provide
appellant’s current diagnoses and determine whether she could return to her regular work duties,
40 hours per week without restrictions and whether she had any permanent impairment based on
the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001).
In a May 2, 2006 medical report, Dr. Janicki reviewed a history of appellant’s accepted
employment-related injuries and medical treatment. On physical and motor examination, he
reported:
“[Appellant] appeared in no acute distress. Her higher cortical functions and
organic sensorium appeared to be intact. [Appellant] had full range of motion of
her head and neck. No tender or trigger points were encountered. Adson’s
maneuver was negative. Speech was clear. No cervical or supra infraclavicular
were appreciated. Cranial nerves all appeared to be intact. Specifically there was
no Horner’s syndrome. More specifically, upper extremity examination did not
reveal any obvious atrophy. [Appellant’s] muscle bulk appeared to be good
throughout her arms and distally into her hands bilaterally. No tremor or
involuntary movements were noted. Muscle tone was normal and symmetrical.
No trigger points were elicited at the cubital tunnel. Tinel’s was negative,
1

Appellant stopped working at the employing establishment on June 27, 1997. On October 4, 1999 she began
working in for a private employer. On October 3, 2004 appellant became a youth worker.
2

On December 18, 1998 appellant filed another claim for an occupational disease assigned number 09-0449414.
She alleged that on November 1, 1997 she first became aware of her left carpal tunnel syndrome and first realized
that it was caused by her former federal employment. By decision dated March 11, 1999, the Office denied the
claim. It found the evidence of record insufficient to establish that appellant sustained an injury in the performance
of duty. On March 27, 2006 the Office doubled this claim and the instant claim into a master claim assigned number
09-0423792.

2

however, Phalen’s did cause some paresthesias and discomfort again only in her
little finger. Motor examination revealed good strength in her upper extremities.
Muscles tested included the biceps, triceps, deltoid, pronator teres, wrist flexors
and extensors, abductor pollicis brevis, first dorsal interosseous and abductor
digiti minimal. No obvious or major strength loss was noted. Sensory
examination to pinprick and light touch did not reveal any abnormalities at this
time.
Reflexes at biceps, triceps and brachioradials were normal and
symmetrical.”
Dr. Janicki stated that he was unable to identify much pathology on examination. He
reviewed a March 2002 electromyogram (EMG) and nerve conduction velocity (NCV) study and
recommended a repeat study. Dr. Janicki opined that appellant probably had a certain amount of
discomfort in her hand and arm but he did not find much neuropathology at the time of his
examination. He stated that some of her description may be related more to tendinitis or even
bursitis. Dr. Janicki concluded that additional testing was necessary to respond to the Office’s
questions.
On August 25, 2006 Dr. Janicki performed an EMG and NCV study. They were reported
as normal and there was only slight/minimal prolongation of the median palmar sensory latency.
Dr. Janicki stated that this was typically not symptomatic of carpal tunnel. He did not identify
any other neurogenic lesions in the right upper extremity.
In a November 14, 2006 report, Dr. Janicki stated that he was unable to provide a specific
diagnosis for appellant’s right hand/arm condition either electrophysically or clinically by his
examination. He stated that there may be some evidence of tendinitis or bursitis involving the
pain in her right hand/arm. Dr. Janicki was not able to totally determine whether appellant could
return to work at that time. He believed that she was experiencing some discomfort unrelated to
neuropathology. From a neurological standpoint, appellant did not have any limitations in her
motion or any limitations that could be brought on by what aggravated her pain. She did not
have any neuropathology causing her pain. Dr. Janicki concluded that he could not rate any
impairment to appellant’s right arm. He concluded that he was not qualified to judge whether
she had pain from another source such as an orthopedic condition, i.e., tendinitis or bursitis.
On December 7, 2006 the Office requested that Dr. Janicki clarify whether appellant had
any residuals of her accepted conditions. It again asked him to determine whether she could
return to her regular work duties, 40 hours per week.
In a supplemental report dated December 21, 2006, Dr. Janicki opined that appellant did
not have any residuals of her employment-related right carpal tunnel or cubital syndrome based
on his physical and objective findings. He opined that she could return to work duties as a mail
processor, 40 hours per week.
By letter dated January 25, 2007, the Office issued a notice of proposed termination of
compensation based on Dr. Janicki’s medical opinion. It provided 30 days in which appellant
could respond.

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Appellant submitted a February 22, 2007 report of Dr. David Steiman, a Board-certified
internist, who reviewed a history of her employment-related right carpal tunnel syndrome and
medical treatment. Dr. Steiman was not sure what happened over the last 10 years with regard to
appellant’s right hand condition but stated that she did not satisfactorily recover from it. On
physical examination, he reported a slight decrease to pinprick on the right hand consistent with
a median nerve problem versus C6 radiculopathy. Reflexes were decreased but symmetrical of
the biceps and triceps. Motor examination showed a global weakness in the right upper
extremity. Appellant had no focal weakness. She had a weak grip and opponens pollicis, and
weakness in the biceps and triceps. Dr. Steiman initially thought appellant simply had a
neuralgia-type problem or causalgia in the nerve that never fully recovered from surgery as
apposed to the possibility of radiculopathy at C6 which caused pain in her arm and hand. He
stated that her examination was not simply focal as the August 25, 2006 EMG/NCV study
seemed to rule that out. Dr. Steiman related that appellant had a positive Tinel’s sign over the
right median nerve but he thought it may have been old.
By decision dated March 7, 2007, the Office terminated appellant’s compensation
benefits effective that date. It accorded weight to Dr. Janicki’s medical opinion. On March 27,
2007 appellant requested a review of the written record by an Office hearing representative.
In a July 12, 2007 form report, Dr. Laskin stated that appellant suffered from right cubital
tunnel syndrome. He indicated with an affirmative mark that the diagnosed condition was
caused by an employment activity. Dr. Laskin could not list the period of appellant’s total
disability.
By decision dated August 15, 2007, an Office hearing representative affirmed the
March 7, 2007 decision. The hearing representative found that Dr. Janicki’s medical opinion
represented the weight of the medical opinion evidence.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits based on the opinion of Dr. Janicki, a referral physician, who reviewed a
history of appellant’s employment-related right carpal tunnel syndrome and cubital tunnel
syndrome. Dr. Janicki reported essentially normal findings on physical examination and noted
3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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that diagnostic studies of the right upper extremity were essentially normal. He opined that
appellant no longer had any residuals or disability due to her accepted employment-related
injuries. Dr. Janicki explained that there were no physical or objective findings of residuals or
disability causally related to the accepted conditions. He concluded that appellant could perform
her regular work duties as a mail processor, 40 hours per week.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.5 Dr. Janicki fully discussed the history of injury and explained
that there were no objective findings to establish that appellant had any continuing employmentrelated residuals or disability. The Board finds that his opinion is detailed, well rationalized and
based upon a complete and accurate history. The Board finds that Dr. Janicki’s opinion
represents the weight of the medical evidence. It establishes that appellant no longer has any
residuals or disability causally related to her employment-related right carpal tunnel syndrome
and cubital tunnel syndrome. The Office met its burden of proof to terminate compensation.
Dr. Steiman’s report stated that appellant had continuing symptoms related to her right
hand and arm as she had not satisfactorily recovered from her employment-related right carpal
tunnel syndrome. He opined that a positive Tinel’s sign over the right median nerve “may” have
been old. Dr. Steiman’s opinion, however, that appellant’s positive Tinel’s sign may have been
old is speculative in nature. The Board has held that medical opinions which are speculative or
equivocal in character have little probative value.6 Further, Dr. Steiman did not specifically
relate his finding to the accepted employment-related conditions. The Board finds that
Dr. Steiman’s report is insufficient to overcome the weight accorded to Dr. Janicki’s medical
opinion.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.7 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.8 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.9 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
5

See Ann C. Leanza, 48 ECAB 115 (1996).

6

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
7

See Manuel Gill, 52 ECAB 282 (2001).

8

Id.

9

Elizabeth Stanislav, 49 ECAB 540 (1998).

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whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.10
ANALYSIS -- ISSUE 2
The only medical evidence submitted by appellant regarding employment-related
residuals or disability after March 7, 2007 is Dr. Laskin’s July 12, 2007 report. Dr. Laskin
indicated with an affirmative mark that appellant’s right cubital tunnel syndrome was caused by
an employment activity. He did not list the period of her total disability. The Board finds that
Dr. Laskin’s report is insufficient to establish appellant’s claim as a report which only addresses
causal relationship with a checkmark without more by way of medical rationale explaining how
the incident caused the injury, is insufficient to establish causal relationship and is of diminished
probative value.11 Further, he did not identify any period of total disability due to appellant’s
accepted employment-related injuries.
The Board finds that appellant did not submit the necessary rationalized medical evidence
to substantiate that the claimed continuing residuals or disability on or after March 7, 2007 were
causally related to her accepted employment-related injuries.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
March 7, 2007 on the grounds that she no longer had any residuals or disability causally related
to her accepted employment-related right carpal tunnel syndrome and cubital tunnel syndrome.
The Board further finds that appellant failed to establish that she had any continuing
employment-related residuals or disability after March 7, 2007.

10

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

11

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

6

ORDER
IT IS HEREBY ORDERED THAT the August 15 and March 7, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westville, NJ, Employer
__________________________________________

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

Docket No. 18-0987
Issued: March 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 16, 2018 appellant, through counsel, filed a timely appeal from a December 15,
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 this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body for schedule award purposes.
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.

FACTUAL HISTORY
On October 12, 2006 OWCP accepted that appellant, then a 51-year-old letter carrier,
developed right lateral epicondylitis due to factors of his federal employment, including engaging
in repetitive motions such as casing, holding, and pulling down mail. Appellant had stopped work
on August 25, 2006 and returned to modified work on November 6, 2006. OWCP paid him wageloss compensation on the supplemental rolls and he retired from federal service on March 1, 2014.
Appellant received treatment for his upper extremity problems from Dr. Bruce A.
Monaghan, a Board-certified orthopedic surgeon. In numerous reports dated between 2006 and
2016, Dr. Monaghan diagnosed such conditions as right lateral epicondylitis and degenerative
arthritis of the right thumb.3 He regularly provided lifting restrictions for the right upper extremity.
In a January 4, 2016 report, Dr. Fredric D. Levin, a Board-certified orthopedic surgeon,
reviewed appellant’s medical history and reported physical examination findings.4 Examination
of the upper extremities revealed full range of motion (ROM) of the shoulders, elbows, wrists, and
hands. Appellant had no atrophy or deformity of either upper extremity. He had negative Tinel’s
and Phalen’s signs bilaterally, and sensory examination failed to reveal any perceived sensory
deficit involving either upper extremity. Appellant exhibited marked tenderness at the
metacarpophalangeal (MCP) joint of the right thumb with positive grind, shake, and pinch testing.
Dr. Levin applied the diagnosis-based impairment (DBI) rating method, utilizing Table 15-2 of the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),5 to find that appellant’s carpometacarpal (CMC) degenerative joint
disease of the right thumb caused two percent permanent impairment of the right upper extremity.
He also opined that, under Table 15-23, appellant’s entrapment neuropathy of the right median
nerve at the wrist caused four percent permanent impairment of that member. Dr. Levin combined
these impairment rating values and concluded that the total permanent impairment of appellant’s
right upper extremity was six percent.6
Prior to reaching his conclusion regarding the extent of permanent impairment of
appellant’s right upper extremity, Dr. Levin also conducted an impairment calculation under the
DBI rating method for appellant’s accepted condition of right lateral epicondylitis. He indicated
that, under Table 15-4, this condition fell under class 1 for the class of diagnosis (CDX), a
designation which warranted a default value of one percent permanent impairment of the right

3

A March 1, 2007 magnetic resonance imaging (MRI) scan of appellant’s right elbow contained an impression of
sprain of the radial collateral ligament, mild-to-moderate proximal common extensor tendinopathy, and small joint
effusion most prominent within the lateral compartment.
4

Dr. Levin noted that in this report appellant walked without a noticeable limp, but had difficulty with heel and toe
walking secondary to pain.
5

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

6
Dr. Levin found that appellant reached maximum medical improvement (MMI) on January 4, 2016, the date of
his physical examination.

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upper extremity.7 Dr. Levin found that appellant had a grade modifier for functional history
(GMFH) of 1, a grade modifier for physical examination (GMPE) of 0, and a grade modifier for
clinical studies (GMCS) of 0. Application of the net adjustment formula resulted in movement
two spaces to the left of the default value on Table 15-4 to the value of zero percent permanent
impairment. Therefore, Dr. Levin concluded that appellant had zero percent permanent
impairment of the right upper extremity due to the accepted condition of right lateral epicondylitis.
On November 16, 2016 appellant filed a claim for a schedule award (Form CA-7).
Appellant subsequently submitted a November 15, 2016 report from Dr. Monaghan who
indicated that he had reviewed Dr. Levin’s January 4, 2016 report and expressed his concurrence
with Dr. Levin that appellant had six percent permanent impairment of the right upper extremity.
On December 14, 2016 OWCP referred appellant’s case to Dr. Herbert White, Jr., a Boardcertified occupational medicine physician serving as a district medical adviser (DMA), and
requested that he review the medical evidence of record, including Dr. Levin’s January 4, 2016
report, and provide an opinion as to the extent of appellant’s permanent impairment.
On December 20, 2016 the DMA reviewed the medical evidence of record and concluded
that appellant had zero percent permanent impairment of the right upper extremity. He indicated
that, under Table 15-4, appellant’s right epicondylitis fell under class 1 for the CDX with a default
value of one percent permanent impairment of the right upper extremity.8 The DMA determined
that appellant had a GMFH of 1 (due to a QuickDASH score of 40), a GMPE of 0 (due to a
“normal” examination), and a GMCS of 0 (due to no studies at the time of MMI). Application of
the net adjustment formula resulted in movement two spaces to the left of the default value on
Table 15-4 to the value of zero percent permanent impairment. The DMA therefore found that
appellant had zero percent permanent impairment of the right upper extremity due to the accepted
condition of right lateral epicondylitis.9 He also indicated that he was unsure of how Dr. Levin
obtained his rating of six percent permanent impairment of the right upper extremity, and he
reiterated his conclusion that appellant had no permanent impairment of the right upper extremity.
By decision dated July 13, 2017, OWCP denied appellant’s schedule award claim, finding
that the weight of the medical evidence, as represented by the DMA’s December 20, 2016 report,
showed that appellant did not have permanent impairment of a scheduled member or function of
the body, warranting a schedule award.
On July 19, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. Counsel later requested that OWCP’s
hearing representative conduct a review of the written record in lieu of an oral hearing. He argued
7

This class 1 designation (with associated default value) is intended for conditions with a history of painful injury
and residual symptoms without consistent objective findings. A.M.A., Guides 399, Table 15-4.
8

The DMA found that appellant reached MMI on January 4, 2016, the date of Dr. Levin’s physical examination.

The DMA advised that he did not use the “surgical release grid” of Table 15-4 because appellant did not undergo
right elbow surgery. He determined that appellant reached MMI on January 4, 2016, the date of Dr. Levin’s physical
examination.
9

3

that there was a conflict in the medical opinion evidence between Dr. Levin and the DMA
regarding permanent impairment.
By decision dated December 15, 2017, OWCP’s hearing representative affirmed the
July 13, 2017 decision finding no conflict between the calculations of permanent impairment by
Dr. Levin and the DMA with respect to appellant’s accepted condition of right lateral
epicondylitis.
LEGAL PRECEDENT
The schedule award provisions of FECA,10 and its implementing regulations,11 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss, or loss of use, of scheduled members or functions of the body. However, FECA does
not specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides
as the uniform standard applicable to all claimants.12 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.13 The sixth edition requires identifying the
class for the CDX, which is then adjusted by grade modifiers GMFH, GMPE, and GMCS.14 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
14

A.M.A., Guides 494-531.

15

Id. at 521.

4

impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”16
ANALYSIS
The Board finds that the case is not in posture for decision.
The Board has previously found that OWCP had inconsistently applied Chapter 15 of the
sixth edition of the A.M.A., Guides when granting schedule awards for upper extremity claims.
No consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.17
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.18 In T.H., the Board concluded that OWCP physicians were
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and DMAs use both DBI and ROM methodologies interchangeably without a
consistent basis. Furthermore, the Board observed that physicians interchangeably cited to
language in the first printing or the second printing when justifying use of either the ROM or DBI
methodology. The Board therefore found that OWCP should develop a consistent method for
calculating permanent impairment for upper extremities, which could be applied uniformly.
As noted above, FECA Bulletin No. 17-06 provides that, if the rating physician provided
an assessment using the DBI rating method, the DMA should independently calculate impairment
using both the ROM and DBI methods and identify the higher rating for the CE.19
The Board finds that this case requires further development of the medical evidence. On
December 20, 2016 the DMA indicated that he had reviewed the January 4, 2016 report of
16

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

17

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

18

K.J., Docket No. 19-0901 (issued December 6, 2019); Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

19

See supra note 17.

5

Dr. Levin, an attending physician, and determined that appellant had zero percent permanent
impairment of his right upper extremity as calculated under the DBI rating method. Since
Dr. Levin provided a rating using the DBI rating method, and appellant’s condition provided for
application of the ROM rating method,20 the DMA was required to independently calculate his
impairment using both the DBI and ROM methods and identify the higher rating for the claims
examiner.21
The Board notes that, the DMA did not conduct an impairment rating calculation under the
ROM method and the case record does not contain recent ROM findings for properly conducting
a right upper extremity permanent impairment rating under the ROM method. As noted above,
FECA Bulletin No. 17-06 provides instructions for obtaining sufficient evidence to conduct a
complete permanent impairment evaluation. However, such instructions were not carried out in
this case and therefore further development of the medical evidence is required in accordance with
FECA Bulletin No. 17-06.22 Dr. Levin indicated in his January 4, 2016 report, that appellant had
full ROM of his right elbow, but he did not provide specific ROM measurements for that elbow.
The DMA, who reviewed Dr. Levin’s report, did not conduct any evaluation under the ROM
method.
Section 15.7 of the sixth edition of the A.M.A., Guides provides that ROM should be
measured after a “warm up,” in which the individual moves the joint through its maximum ROM
at least three times. The ROM examination is then performed by recording the active
measurements from three separate ROM efforts and all measurements should fall within 10
degrees of the mean of these three measurements. The maximum observed measurement is used
to determine the ROM impairment.23 There currently is no evidence in the case record that these
requirements for evaluating permanent impairment due to ROM deficits have been met.
In order to conduct a full evaluation of appellant’s right upper extremity permanent
impairment, the Board finds that the case shall be remanded to OWCP in order for it to obtain the
raw data from Dr. Levin’s ROM testing for the right upper extremity. Once the data is obtained,
it should be evaluated and considered under the relevant standards of the A.M.A., Guides,
including referral to a DMA, as a possible basis for an impairment rating. If no such data is
available, OWCP shall take appropriate action for further examination to obtain the necessary
ROM measurements.
This case shall therefore be remanded for full application of OWCP’s procedures found in
FECA Bulletin No. 17-06 and the standards of the sixth edition of the A.M.A., Guides. After
conducting this and other such further development of the medical evidence as deemed necessary,
OWCP shall issue a de novo decision regarding appellant’s schedule award claim.

20

See A.M.A., Guides 399, Table 15-4.

21

See supra note 17.

22

Id.

23

A.M.A., Guides 464.

6

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action with this
decision of the Board.
Issued: March 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
_________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0386
Issued: March 31, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 25, 2021 appellant, through counsel, filed a timely appeal from a December 22,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 21-0386.
In a letter dated and received March 4, 2021, counsel requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0386 is dismissed.
Issued: March 31, 2021
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1882
Issued: March 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
Appellant filed an application for review of the Office of Workers’ Compensation
Programs’ (OWCP) July 18, 2012 merit decision denying his traumatic injury claim.1 The
appeal was docketed as No. 12-1942. After considering the evidence of record, the Board finds
this case is not in posture for a decision.
This appeal involves appellant’s July 8, 2011 traumatic injury claim (File No.
xxxxxx436), in which he alleged that he suffered whole body radiation exposure on
December 21, 2006 when the door to the “source” was unexpectedly opened while he was
outside of the safety exclusion zone. Appellant’s coworker corroborated his version of the facts.
As a result of the December 2006 incident and continuing exposure to unknown levels of
radiation for several years, he alleged that he developed Hashimoto’s disease. Appellant
indicated that he was unable to provide exact radiation exposure rates due to the fact that the
information was in the possession of the employing establishment or was not properly
monitored. On November 9, 2011 OWCP asked the employing establishment to provide
additional information regarding the extent and duration of his radiation exposure.

1

OWCP treated appellant’s claim as one for both traumatic injury and occupational disease. Appellant alleged
that he was exposed to radiation in the performance of duty on December 21, 2006, as well as on numerous other
occasions.

The employing establishment controverted the claim. It contended that, because
appellant’s exposure was either at or just above background radiation levels and was for only a
few seconds, a conventional meter would not likely record the exposure. The employing
establishment denied his claim that he was standing in front of the operator’s door when the
exposure occurred and contended, therefore, that neither he nor his coworker were directly
exposed. It asserted that a printout of the “scan” of the December 21, 2006 incident revealed that
no one was physically scanned by the equipment but the printout was unavailable.
In a decision dated January 6, 2012, OWCP denied appellant’s claim finding that he had
failed to establish that the events occurred as described or that he was exposed to unacceptable
radiation levels either on December 21, 2006 or over a period of time. Appellant requested an
oral hearing.
In a decision dated July 18, 2012, an OWCP hearing representative affirmed the
January 6, 2012 decision. He found that appellant had failed to establish that he was exposed to
radiation or that his diagnosed Hashimoto’s disease was caused by radiation exposure. The
hearing representative accepted that the December 21, 2006 incident occurred but found that
there was no evidence that appellant was exposed to radiation during the incident. He also found
that there was no evidence that appellant was exposed to radiation sufficient to cause
acceleration or to precipitate his thyroid condition.2 After considering the evidence, the Board
finds that this case is not in posture for a decision.
On November 9, 2011 OWCP asked the employing establishment to provide additional
information regarding the extent and duration of appellant’s radiation exposure. While the
employing establishment controverted his claim, it did not provide exact radiation exposure
rates, daily rosters or data on cumulative radiation exposure. Absent such information, it is
impossible for a physician to provide an opinion as to whether appellant’s radiation exposure
was sufficient to cause or contribute to his diagnosed thyroid disease. OWCP accepted that the
claimed incident occurred on December 21, 2006, namely that the door to the “source”
unexpectedly opened, releasing some degree of radiation in an area where appellant was located.
Information pertaining to the radiation exposure rates is essential to an ultimate determination as
to whether he sustained an injury causally related to his employment. An employer’s reluctance
or refusal to submit requested evidence relating to an employee’s claim should not be an
impediment to a successful prosecution of the claim.3 In the present case, the type of
information being sought is normally within the custody of the employing establishment and not
readily available to appellant4. Accordingly, appellant should not be penalized for the employing
establishment’s failure to submit such information.5
2

The Board notes that appellant requested that the hearing representative issue subpoenas to the employing
establishment for all correspondence and other documentation concerning radiation exposure in the workplace,
including OSHA reports and daily rosters confirming appellant’s exposure during the course of his employment.
The hearing representative denied appellant’s requests.
3

See Jerome J. Kubin, Docket No. 03-1830 (issued October 1, 2003).

4

See Marco A. Padilla, 51 ECAB 202 (1999).

5

See id.

2

It is well established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter. While an employee has the burden to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and has the
obligation to see that justice is done.6 On remand OWCP should again request any pertinent
information from the employing establishment regarding appellant’s radiation exposure on
December 21, 2006, as well as all information and documentation relating to actual levels of
exposure at the employing establishment and the dates of his exposure. In particular, OWCP
should obtain the daily rosters from April 2003 to September 2010, as well as a printout of the
scan of the December 21, 2006 incident. It should inform the employing establishment of its
obligations under the provisions of section 10.118(a) of the code of federal regulations.7
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 18, 2012 decision be set aside and the case remanded for further development consistent
with this order. After such further development as it deems necessary, OWCP shall issue an
appropriate merit decision.8
Issued: March 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6

E.J., Docket No. 09-1481 (issued February 19, 2010); William J. Cantrell, 34 ECAB 1233 (1983).

7

Section 10.118(a) provides that the employer is responsible for submitting to OWCP all relevant and probative
factual and medical evidence in its possession, or which it may acquire through investigation or other means. 20
C.F.R. § 10.118(a) (2011).
8

The Board notes that there was a discrepancy in the evidence regarding the location of appellant during the
December 21, 2006 incident. OWCP should make specific findings, based on current evidence of record, including
the witness statement from appellant’s coworker, Mr. Burrill, and further development of the factual evidence.

3