United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Silver Spring, MD, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-532
Issued: August 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 4, 2012 appellant, through her attorney, filed a timely appeal from a July 21,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
schedule award claim. 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 schedule award decision.
ISSUE
The issue is whether appellant is entitled to a schedule award for a permanent impairment
of the right upper extremity.
FACTUAL HISTORY
On May 23, 2001 appellant, then a 44-year-old letter carrier, filed an occupational disease
claim alleging that she sustained carpal tunnel syndrome, a pinched nerve in her neck and

1

5 U.S.C. § 8101 et seq.

myofascial pain due to carrying her mailbag. OWCP accepted the claim for a disc herniation
with right cervical radiculopathy.
On October 2, 2006 appellant filed a claim for a schedule award. In a report dated
February 16, 2005, Dr. Fredric L. Salter, a Board-certified orthopedic surgeon, measured cervical
range of motion and found “diffuse tenderness in the upper trapezius, greater on the right than
the left.” On examination, he found no loss of reflex or deficits in motor strength or sensation.
In a report dated May 9, 2007, Dr. Salter discussed appellant’s complaints of neck pain radiating
from the right shoulder to middle back. He diagnosed continued pain following an anterior
cervical discectomy, corpectomy and fusion at C5-7. Using the fourth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (A.M.A.,
Guides), Dr. Salter found that appellant had a 12 percent impairment due to loss of range of
motion of the spine.
By letter dated June 1, 2009, OWCP advised appellant that it required an impairment
evaluation from a physician utilizing the sixth edition of the A.M.A., Guides. On June 30, 2009
Dr. Salter considered her symptoms of neck pain radiating into the right shoulder. He used Table
17.2 on page 564 of the sixth edition of the A.M.A., Guides, relevant to determining impairments
of the cervical spine, to find a 28 percent whole person impairment.
On August 12, 2009 OWCP’s medical adviser reviewed Dr. Salter’s finding in his
February 16, 2005 report that appellant had “no reflex, motor or sensory deficits about the upper
extremities.” He thus concluded that there was no evidence of an upper extremity impairment.
The medical adviser also found that Dr. Salter’s whole person impairment rating was
inappropriate under FECA.
By decision dated November 5, 2009, OWCP denied appellant’s claim for a schedule
award on the grounds that the medical evidence was insufficient to show that she had an
impairment of the upper extremities. On December 2, 2009 appellant’s attorney requested an
oral hearing. On April 23, 2010 counsel asked for a review of the written record in lieu of an
oral hearing.
In a report dated May 6, 2010, Dr. Salter discussed appellant’s complaints of “sticking
pains down her right arm and a numb feeling; when it is painful it is weak.” He stated:
“On examination today, cervical motions are essentially unchanged from my
initial evaluation of February 16, 2005. There is no reflex, motor or sensory
deficits about the upper extremity. With full shoulder abduction and lateral
cervical flexions [appellant] complains of radiating right arm pain. Positive
Spurling towards the right.”
Using the fifth edition of the A.M.A., Guides, Dr. Salter found that appellant had a 4
percent impairment at C5, C6 and C7 due to “subjective evidence of pain and tingling in the
C5-6 and C6-7 distributions,” for a total right upper extremity impairment of 12 percent.
By decision dated July 19, 2010, OWCP’s hearing representative set aside the
November 5, 2009 decision. She found the May 6, 2010 report from Dr. Salter was sufficient to
warrant further development. The hearing representative remanded the case for an OWCP
2

medical adviser to review Dr. Salter’s report and provide a rationalized finding regarding
whether appellant had a permanent impairment of the right upper extremity.
In a report dated December 27, 2010, OWCP’s medical adviser found that the medical
evidence was insufficient to establish a right upper extremity impairment. He noted that an
impairment of a spinal nerve affecting the extremity was evaluated in accordance with the
July/August issue of The Guides Newsletter.2 The medical adviser found that the proposed
tables set forth in The Guides Newsletter required identification of the involved nerve and the
degree of sensory and/or motor deficit. He concluded, “In this case, Dr. Salter clearly documents
that there is ‘no reflex, motor or sensory deficits about the upper extremity.’ Therefore, there is
no objective basis upon which to rate impairment.”
By decision dated January 6, 2011, OWCP denied appellant’s schedule award claim. It
indicated in its decision that she had previously received an award for a 12 percent impairment of
the right upper extremity. On February 3, 2011 counsel requested an oral hearing, which he
subsequently changed to a request for a review of the written record. On June 13, 2011 he
contended that OWCP erred when it found that appellant had previously received a 12 percent
impairment.
In a decision dated July 21, 2011, OWCP’s hearing representative affirmed the January 6,
2011 decision as modified to reflect that appellant had not previously received an award for a 12
percent impairment. She noted that the sentence was a typographical error.
On appeal, counsel argues that under Table 16-13 of the fifth edition of the A.M.A.,
Guides, pain can be the basis for an impairment rating.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations4 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.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6

2

Christopher R. Brigham, MD, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, The Guides
Newsletter (July/August 2009).
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

3

The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.8 OWCP has adopted
this approach for rating impairment of the upper or lower extremities caused by a spinal injury.9
ANALYSIS
OWCP accepted that appellant sustained a herniated disc with right cervical
radiculopathy due to factors of her federal employment. On October 2, 2006 she filed a claim
for a schedule award. In support of her claim, appellant submitted a May 9, 2007 report from
Dr. Salter, who opined that she had a 12 percent permanent impairment due to loss of range of
motion of the spine. FECA, however, does not provide for payment of a schedule award for the
permanent loss of use of the back or spine.10
In a report dated June 30, 2009, Dr. Salter used the sixth edition of the A.M.A., Guides to
find that appellant had a 28 percent impairment of the whole person using Table 17.2, the
Cervical Regional Grid. FECA, however, does not authorize the payment of schedule awards for
a whole person impairment.11 Further, as discussed, a claimant is not entitled to a schedule
award for an impairment of the spine or back.12
On May 6, 2010 Dr. Salter reviewed appellant’s complaints of pain radiating down the
right arm with numbness and weakness with pain. On examination, he found no “reflex, motor
or sensory deficits about the upper extremity,” full shoulder abduction and a positive Spurling’s
test on the right. Dr. Salter applied the fifth edition of the A.M.A., Guides to find a 12 percent
impairment due to loss of sensation at C5, C6 and C7. Physicians, however, must use the sixth
edition of the A.M.A., Guides for all ratings on or after May 1, 2009. A medical opinion not

7

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

8

Supra note 8.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
10

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19); see also Jay K.
Tomokiyo, 51 ECAB 361 (2000). A schedule award is payable for a permanent impairment of the extremities that is
due to a work-related back condition; see Denise D. Cason, 48 ECAB 530 (1997).
11

N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

12

See supra note 10.

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based on the appropriate edition of the A.M.A., Guides is of diminished probative value in
determining the extent of a claimant’s permanent impairment.13
Further, OWCP’s medical adviser reviewed Dr. Salter’s report and found that there was
no basis for an impairment rating of the upper extremity. He found that OWCP had adopted the
approach set forth in The Guides Newsletter for rating spinal nerve injuries as impairments of the
extremities. The medical adviser noted that The Guides Newsletter required identification of the
affected nerve and the extent of any sensory or motor loss. He concluded that, as Dr. Salter
found no sensory or motor deficit, there was no ratable impairment. Appellant has submitted no
medical evidence in conformance with the A.M.A., Guides supporting a ratable impairment of
the upper extremity. Consequently, she did not meet her burden of proof.
On appeal, counsel argues that under the fifth edition pain can be the basis for an
impairment rating. As noted, however, effective May 1, 2009 the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.14
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for a permanent
impairment of the right upper extremity.

13

See Shalanya Ellison, 56 ECAB 150 (2004).

14

See supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the July 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Traverse City, MI, Employer
__________________________________________

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

Docket No. 08-2049
Issued: April 15, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated May 14, 2008. 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 met his burden of proof in establishing that he sustained an
employment injury on June 14, 2006.
FACTUAL HISTORY
On July 13, 2006 appellant, then a 44-year-old mail processing clerk, filed an
occupational disease alleging that he developed a left shoulder condition while lifting and pulling
trays in his light-duty position on June 14, 2006. He indicated that his original injury occurred
on May 6, 2005.1 In support of his claim, appellant submitted a July 5, 2006 note from
1

This is file number xxxxxx015.

Dr. James P. VanWagner, an osteopath, who found that he was totally disabled. Dr. VanWagner
stated that appellant was unable to work due to a June 14, 2006 left shoulder injury.
Dr. VanWagner examined appellant on June 16, 2006 and reported that his left rotator
cuff surgery still resulted in weakness and pain. He recommended a magnetic resonance
imaging (MRI) scan. On July 5, 2006 the MRI scan demonstrated that appellant’s rotator cuff
was intact, but that there was muscle atrophy. Dr. VanWagner informed appellant that he could
not do his job.
In a letter dated July 20, 2006, the Office requested additional factual and medical
evidence in support of appellant’s claim. In a note and a duty status report dated August 15,
2006, Dr. VanWagner indicated that appellant could return to work on August 15, 2006 using
only his right arm.
By decision dated September 1, 2006, the Office denied appellant’s claim, finding that he
failed to submit sufficient evidence. It noted that appellant had not submitted the necessary
medical evidence to support his claim for a work-related injury.
Dr. VanWagner completed a report on August 15, 2006 and stated that appellant
sustained a work injury on May 6, 2005 to his left shoulder. He noted appellant’s history of
previous nonemployment-related left shoulder injuries and surgeries. On October 24, 2005 he
underwent an open rotator cuff repair and debridement of the rotator cuff tissue. On June 14,
2006 appellant sustained a pulling type injury resulting in severe pain. Dr. VanWagner noted
that the MRI scan revealed an intact rotator cuff with significant muscle atrophy. He found that
appellant was totally disabled on July 5, 2006 and released him to right-handed work only on
August 15, 2006.
Appellant requested an oral hearing on September 22, 2006 which was held on
March 12, 2008. He stated that following his initial left shoulder injury he returned to limited
duty with restricted motion of his left arm and hand sorting mail and “rip-ups” with his right arm
lifting under 15 pounds. Appellant stated that he was sweeping mail into trays with his left arm
when he developed increased pain. He noted that the pain developed over one work shift on
June 14, 2006. Appellant contended that the work he was performing was outside his restrictions
as he repetitively lifted between 5 and 15 pounds. He noted that he did not usually work on the
machines, but due to mail volume he did so on June 14, 2006. He retired March 15, 2007.
By decision dated May 14, 2008, the hearing representative affirmed the September 1,
2006 decision. She adjudicated appellant’s claim as a traumatic injury and found that the
employment incident of June 14, 2006 occurred as alleged. However, the medical evidence was
not sufficient to establish an injury resulting from the employment incident.
LEGAL PRECEDENT
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to

2

time and place of occurrence and member or function of the body affected.2 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.3 Such opinion of the physician must be
one of reasonable medical certainty and must be supported by medical reasoning explaining the
nature of the relationship between the diagnosed condition and the employment.4 The Board has
held that the mere diagnosis of “pain” does not constitute a basis for the payment of
compensation.5
ANALYSIS
Appellant filed a claim alleging that on June 14, 2006 he sustained an injury to his left
shoulder due to his work activities. The Office accepted that the employment incident occurred
as alleged. However, it found that he did not submit sufficient medical opinion evidence to
establish that an injury resulted from the employment incident.
Appellant submitted treatment notes from Dr. VanWagner, an osteopath, addressing his
left shoulder condition and resulting disability. Dr. VanWagner examined appellant on June 16
and July, 5, 2006 and found left shoulder weakness and pain. He indicated that appellant had a
preexisting left shoulder condition for which surgery had been performed. Dr. VanWagner noted
that the MRI scan demonstrated no new rotator cuff tear, but that appellant had muscle atrophy.
On August 15, 2006 he noted appellant’s preexisting medical history of his left shoulder and
stated that, on June 14, 2006, he sustained a pulling type injury resulting in severe pain.
Dr. VanWagner again mentioned appellant’s MRI scan findings and concluded that he had a
period of total disability. Other than noting atrophy of the left shoulder, he did not provide a
clear diagnosis of any condition resulting from appellant’s work activities of June 14, 2006.
Dr. VanWagner merely diagnosed pain. As noted, the diagnosis of pain is not sufficiently
detailed to establish a new injury as claimed. He failed to provide any medical explanation of
how appellant’s left shoulder muscle atrophy was due to his accepted employment incident.
Without a clear diagnosis or medical reasoning explaining the relationship of his findings to the
accepted employment incident, the medical evidence found that Dr. VanWagner is not sufficient
to meet appellant’s burden of proof.

2

20 C.F.R. § 10.5(ee).

3

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

4

Leslie C. Moore, 52 ECAB 132, 134 (2000).

5

Robert Broome, 55 ECAB 339, 342 (2004).

3

CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that he sustained an injury on June 14, 2006 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2009
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, IRVING MAIN POST
OFFICE, Irving, TX, Employer
__________________________________________

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

Docket No. 20-1511
Issued: September 23, 2021

Case Submitted on the Record

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

JURISDICTION
On August 10, 2020 appellant filed a timely appeal from a May 18, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant ’s
wage-loss compensation and medical benefits, effective July 21, 2019, as he no longer had
disability or residuals causally related to his accepted June 30, 2016 employment conditions; and

1
2

5 U.S.C. § 8101 et seq.

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

(2) whether appellant has met his burden of proof to establish continuing disability or residuals
causally related to his accepted June 30, 2016 employment conditions on or after July 21, 2019.
FACTUAL HISTORY
On July 1, 2016 appellant, then a 48-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 30, 2016 he became dehydrated while in the performance of
duty. He explained that he experienced cramping of both hands and legs, and a strange stinging
went through his neck and back. Appellant stopped work on the date of injury.
OWCP initially accepted the claim for heat exhaustion anhidrotic (resolved). On
August 17, 2017 it expanded the acceptance of the claim to include the conditions of lumbar and
cervical radiculopathy, and muscle weakness (generalized) resolved. OWCP paid appellant wageloss compensation on the supplemental rolls from August 1, 2016 through March 31, 2018 and on
the periodic compensation rolls effective April 1, 2018.
In a November 20, 2017 report, Dr. Rory Allen, an osteopath specializing in family
medicine, noted that on June 30, 2016 appellant suffered heat stroke, fell, and passed out while on
his route. He diagnosed heat stroke, radiculopathy of the cervical spine, radiculopathy of the
lumbar spine, cervical intervertebral disc syndrome and lumbar intervertebral disc syndrome.
Dr. Allen opined that appellant remained temporarily totally disabled from the June 30, 2016
employment injury. In a November 30, 2017 progress report, he assessed cervical intervertebral
disc with radiculopathy, lumbar intervertebral disc with radiculopathy, heat stroke, and muscle
weakness. Dr. Allen noted that appellant’s physical evaluation indicated that he could perform
sedentary to light-duty work with a physical demand level of 10 to 20 pounds. He, however,
indicated in a November 30, 2017 duty status report (Form CA-17), that appellant remained totally
disabled.
On December 22, 2017 OWCP referred appellant for a second opinion examination with
Dr. Jack H. Henry, a Board-certified orthopedic surgeon. It requested that he provide an opinion
regarding whether appellant continued to have residuals or disability related to his accepted
employment conditions. OWCP also requested that he address whether the conditions of cervical
radiculopathy and lumbar radiculopathy were related to the accepted work-related conditions. The
November 20, 2017 statement of accepted facts (SOAF) noted accepted conditions as: heat
exhaustion (resolved), muscle weakness (resolved), radiculopathy, lumbar region, and
radiculopathy, cervical region.
In a January 31, 2018 report, Dr. Henry reviewed appellant’s history of injury, the SOAF,
the medical record and set forth examination findings. He opined that appellant’s cervical and
lumbar radiculopathy conditions were attributable to the heatstroke on June 30, 2016 when
appellant fell on the ground causing injury to his neck and lower back. In a second report dated
February 8, 2018, Dr. Henry related that a functional capacity evaluation (FCE) was performed on
February 8, 2018. He opined that appellant was unable to return to work in his date-of-injury
position, but he could perform work in the light category based on the completed FCE. In a
February 8, 2018 work capacity evaluation (Form OWCP-5c), Dr. Henry opined that appellant
could work with temporary restrictions for four to six months, noting that maximum medical
improvement (MMI) had not been reached.

2

On March 8, 2018 OWCP expanded the acceptance of the claim to include the additional
conditions of cervical and lumbar intervertebral disc disorder with radiculopathy.
In an April 9, 2018 report, Dr. Paul Saadi, an orthopedic surgeon, indicated that appellant’s
examination findings, imaging results, and symptoms were consistent with appellant’s traumatic
injury of the cervical and lumbar spine.
OWCP subsequently received an authorization request for a three-level disc excision and
fusion at C3-4, C4-5, and C5-6.
Dr. Allen continued to opine that appellant remained temporarily totally disabled from
work due to his employment conditions and would remain disabled pending surgery.
On June 25, 2018 OWCP updated the SOAF to include all the accepted conditions.
mechanism of injury was reported.

No

In a June 29, 2018 report, Dr. Franklin M. Epstein, a Board-certified neurosurgeon serving
as the district medical adviser (DMA), reviewed the medical record and SOAF. He opined that
the proposed three-level disc excision and fusion procedure at C3-4, C4-5, and C5-6 was not
medically necessary for treatment of the employment injury.
On December 3, 2018 OWCP determined that there was a conflict in the medical opinion
evidence between Dr. Allen, the attending physician, and Dr. Henry, OWCP’s second opinion
physician, as to whether appellant continued to be totally disabled causally related to his accepted
conditions.3 In order to resolve the conflict, OWCP referred appellant, pursuant to section 8123(a)
of FECA (5 U.S.C. § 8123(a)), to Dr. James F. Hood, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a February 28, 2019 report, Dr. Hood discussed appellant’s factual and medical history
and reported the findings of appellant’s February 21, 2019 physical examination. He indicated
that appellant had no signs of radiculopathy on examination. In the absence of correlating physical
examination findings to the magnetic resonance imaging studies, Dr. Hood opined that appellant
was not a candidate for surgery. He also explained that appellant would not be a candidate for any
arthrodesis as there was no documentation of any segmental instability. Dr. Hood further opined
that appellant no longer had residuals of the employment-related injury. He indicated that the
injury had occurred almost three years ago and the record revealed that appellant had a soft tissue
sprain/strain event of the neck and back. Dr. Hood explained that the documentation of record
failed to include any significant signs of radiculopathy and appellant’s examination was negative
for any radiculopathy or significant sequelae of anything that happened three years ago. He
explained that since it was his opinion that appellant had nothing more than a sprain/strain event,
he would have been at maximum medical improvement no later than three months following the
event or October 1, 2016. Anything after that would be secondary to other issues, not the single
event of June 30, 2016. Following a February 26, 2019 FCE, Dr. Hood opined, in an undated
addendum, that appellant could work at a light level. He noted, however, that the FCE revealed a
3

It also noted that a conflict also existed in the medical opinion evidence between appellant’s treating physicians
and OWCP’s District Medical Adviser as to whether appellant required a three-level disc excision and fusion from
C3 to C6.

3

less than maximum effort, which he indicated corresponded to his examination findings of
symptom magnification. Dr. Hood thus opined that, in relation to the June 30, 2016, employment
injury, appellant could return to his prior employment. He emphasized that there was no evidence
that the employment event was anything more than a sprain/strain event, which would resolve in
a short and finite period. Dr. Hood concluded that any current signs and symptoms were no longer
related to the event, but a myriad of factors including deconditioning, symptom magnification,
secondary gain, iatrogenically-based pain behaviors, and age-related degenerative disc changes.
In a February 19, 2019 report, Dr. Allen continued to place appellant off work. He
explained that appellant was temporarily totally disabled due to ongoing severe pain and taking
pain medication, and was unable to tolerate limited work-related duties. Dr. Allen also explained
that appellant failed conservative treatment and was awaiting referral to a spine surgeon to
determine surgical candidacy and approval. 4
In a notice dated March 14, 2019, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits as he ceased to have disability or residuals
causally related to his accepted employment conditions. It indicated that the special weight of the
medical opinion evidence with respect to employment-related disability and residuals rested with
the opinion of Dr. Hood, the impartial medical specialist. OWCP afforded appellant 30 days to
challenge the proposed termination action.
OWCP continued to receive progress reports and attending physician’s reports (Form CA20) from Dr. Allen, in which he opined that appellant was totally disabled due to lumbar
radiculopathy, cervical radiculopathy, cervical disc disorder with radiculopathy, and intervertebral
disc disorders with radiculopathy. Dr. Allen additionally opined that appellant had severe ongoing
pain and was taking pain medication for which he was unable to tolerate limited work-related
duties. He also noted that appellant was pending referral to a spine surgeon.
In an April 26, 2019 report, Dr. Mathias Daniels, an orthopedic spine surgery specialist,
provided an assessment of other intervertebral disc displacement, lumbosacral region; other
intervertebral disc displacement, lumbar region, radiculopathy, lumbosacral region, sprain of
ligaments of lumbar spine, other cervical disc displacement, mid-cervical region, radiculopathy,
cervical region. He opined that appellant continued to exhibit symptoms and examination findings
consistent with traumatic injury to the cervical and lumbar spine. Dr. Daniels also indicated that
appellant’s lumbar radicular pain remained debilitating despite conservative care.
OWCP also received August 3, 2016 emergency department notes; diagnostic tests
performed on January 24 and March 29, 2019; and FCE’s dated February 14, February 26, and
April 25, 2019.
By decision dated July 15, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective July 21, 2019, as he no longer had disability or residuals causally
related to his accepted June 30, 2016 employment conditions. It found that the special weight of

4

By decision dated March 14, 2019, OWCP denied surgical authorization for a three-level disc excision and fusion
at C3-4, C4-5, and C5-6. The special weight of the medical evidence was accorded to Dr. Hood’s impartial medical
opinion.

4

the medical opinion evidence with respect to employment-related disability and residuals rested
with the opinion of Dr. Hood, the impartial medical specialist.
On February 10, 2020 appellant requested reconsideration of the termination decision and
submitted additional evidence.
Additional reports, including Form CA-17s and Form CA-20s, were received from
Dr. Allen. Dr. Allen reported a history of the injury, diagnosed conditions, treatment synopsis and
that appellant wanted to discuss pursuing medical disability retirement. In reports dated July 24,
2019 through May 12, 2020, he also noted that appellant was able to start limited duty on
July 24, 2019.
In an April 15, 2019 report, Dr. Andrew Indresano, a Board-certified orthopedic surgeon,
noted the history of injury as appellant having a syncopal episode and that he reported having two
more syncopal episodes while working which also resulted in falls. He noted examination findings
and provided assessments of cervicalgia, cervical intervertebral disc disorder with myelopathy,
spondylosis, cervical radiculopathy, cervical spinal stenosis, lower back pain, lumbar degenerative
disc disease, lumbar radiculopathy, and lumbar spinal stenosis and spondylolisthesis. Surgical
opinions were discussed.
By decision dated May 18, 2020, OWCP denied modification of its July 15, 2019 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment
injury.6 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background. 7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability. 8 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment. 9

5

S.P., Docket No. 19-0196 (issued June 24, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6
See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
7

D.G., supra note 5; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284,
29596 (1988).
8

S.P., supra note 5; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
9

D.G., supra note 5; L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued
February 5, 2019).

5

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”10 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective July 21, 2019, as he no longer had disability or
residuals causally related to his accepted June 30, 2016 employment conditions.
Appellant’s attending physician, Dr. Allen, opined that appellant was totally disabled from
work pending surgery. OWCP referred appellant for a second opinion with Dr. Henry, who opined
that appellant was capable of working eight hours per day with restrictions. Due to the conflict
between Dr. Allen and Dr. Henry, it properly referred appellant for an impartial medical
examination with Dr. Hood to resolve the conflict in the medical opinion evidence, pursuant to
5 U.S.C. § 8123(a).
In a February 28, 2019 report, Dr. Hood noted that he had reviewed the medical record.
He related appellant’s physical examination findings, which he indicated did not reveal signs of
radiculopathy. Dr. Hood opined that appellant no longer has residuals of the employment-related
injury. He indicated that the record revealed appellant had a soft tissue sprain/strain event of the
neck and back. Dr. Hood explained that since it was his opinion that appellant had nothing more
than a sprain/strain event, appellant would have been at maximum medical improvement no later
than three months following the event or October 1, 2016. In an addendum to the February 28,
2019 report, he noted that the February 26, 2019 FCE revealed that appellant had set forth a less
than maximum effort, which he indicated corresponded to his examination findings of symptom
magnification. Dr. Hood thus opined that, in relationship to the June 30, 2016 employment injury,
appellant could return to his prior employment. He emphasized that there was no evidence that
the employment event was anything more than a sprain/strain event, which would resolve in a
short and finite period. Dr. Hood thus opined that any current signs and symptoms were no longer
related to the event, but a myriad of factors including deconditioning, symptom magnification,
secondary gain, iatrogenically-based pain behaviors, and age-related degenerative disc changes. 12
Based on this report, OWCP terminated appellant’s wage-loss compensation and medical benefits,
effective July 21, 2019.

10

5 U.S.C. § 8123(a).

11

D.G., supra note 5; D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008);
James P. Roberts, 31 ECAB 1010 (1980).
12

Dr. Hood also opined that appellant was not a candidate for surgery. As noted, by decisions dated March 14 and
October 11, 2019, OWCP denied surgical authorization for a three-level disc excision and fusion at C3-4, C4-5, and
C5-6.

6

Dr. Hood specifically advised that it was his opinion that appellant had nothing more than
a sprain/strain event on June 30, 2016. However, the SOAF provided to Dr. Hood specifically
noted the conditions that had already been accepted as work related. The Board has long held that
the report of an impartial medical specialist who disregards a critical element of the SOAF is
defective and insufficient to resolve the existing conflict of medical opinion evidence. 13 The Board
thus finds that Dr. Hood’s report is not entitled to the special weight as an impartial medical
specialist and is insufficient to meet OWCP’s burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective July 21, 2019.14
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: September 23, 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

13

C.G., Docket No. 20-0808 (issued April 23, 2021); W.F., Docket No. 18-0653 (issued September 26, 2019); B.B.,
Docket No. 18-1121 (issued January 8, 2019); V.C., Docket No. 14-1912 (issued September 22, 2015).
14

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

7


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

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

Docket No. 19-0916
Issued: October 4, 2019

Case Submitted on the Record

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

JURISDICTION
On March 25, 2019 appellant, through counsel, filed a timely appeal from a January 30,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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 right knee
condition causally related to the accepted September 22, 2017 employment incident.
FACTUAL HISTORY
On September 22, 2017 appellant, then a 38-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right knee when he felt something pop
in his knee after exiting his truck to deliver mail to a cluster box unit (CBU) while in the
performance of duty. On the reverse side of the claim form, appellant’s supervisor indicated that
he noticed that appellant had a wrap around his injured knee at the beginning of the week which
was prior to the claimed date of injury. Appellant stopped work that day.
In a letter dated September 27, 2017, the employing establishment controverted the claim,
asserting that appellant’s knee injury may not be job related. It reiterated that the postmaster
noticed appellant wearing a blue wrap on his right knee prior to the claimed date of injury.
In a development letter dated October 2, 2017, OWCP advised appellant that additional
factual and medical evidence was necessary to establish his claim. It requested that he complete a
questionnaire regarding the factual circumstances of his injury and provide additional medical
evidence. OWCP afforded appellant 30 days to submit the requested evidence.
In a September 22, 2017 emergency room record, Dr. Robert Whitford, Board-certified in
emergency medicine, noted that appellant presented with right knee pain and explained that he
experienced an onset of severe pain after he felt a pop in his right knee while walking and
delivering mail. On examination he found no evidence of a grossly unstable knee and referred
appellant to orthopedic surgery for a magnetic resonance imaging (MRI) scan of the knee. An
x-ray of the right knee revealed no fracture or dislocation.
In a letter of even date, Dr. Whitford indicated that he treated appellant that day and that
he could return to work on September 24, 2017, but should not bear any weight on his injured leg.
OWCP also received a September 25, 2017 office note from Dr. Christopher Utz, a Boardcertified orthopedic surgeon, who noted that appellant had pain in his right knee at full flexion and
tenderness in his medial joint, but indicated that his knee was ligamentously stable. Dr. Utz
assessed right knee pain with “possible meniscus tear.” In a statement of even date, he opined that
appellant could return to work, but with limitations for no prolonged standing or walking, no lifting
greater than 10 pounds, no squatting, and mostly sedentary work.
A September 25, 2017 right knee x-ray interpreted by Dr. Brian Guarnieri, Board-certified
in internal medicine, revealed no evidence of acute osseous abnormality.
On October 11, 2017 appellant responded to OWCP’s development questionnaire. He
explained that when he was walking from the first CBU to the second, he felt a pop in his right
knee. Appellant indicated that he felt extreme pain in his right knee and could not bear any weight
on his right side. He then secured the mail, returned to his truck, and called management.

2

Appellant asserted that he had no prior injuries or symptoms before the September 22, 2017
incident.
By decision dated November 6, 2017, OWCP denied appellant’s claim finding that he had
not submitted medical evidence containing a medical diagnosis in connection with the accepted
September 22, 2017 employment incident.
OWCP continued to receive evidence, including previously submitted medical notes and
records.
On February 5, 2018 appellant followed up with Dr. Utz for a postoperative examination
following right knee arthroscopy with medial meniscus repair and chondroplasty performed on
December 29, 2017. Dr. Utz noted that he was doing well, with minimal complaints of pain, and
concluded that it was reasonable for appellant to return to work the following week.
In an April 16, 2018 progress note, Dr. Utz noted that appellant was recovering well and
diagnosed acute right-sided medial meniscal tear.
On July 23, 2018 appellant, through counsel, requested reconsideration of OWCP’s
November 6, 2017 decision.
Along with his request, appellant submitted medical records from Dr. Jay Hayner, Boardcertified in internal medicine, for the period December 2, 2014 through February 8, 2018. In a
November 16, 2017 office visit note, Dr. Hayner diagnosed acute pain of the right knee and on
examination appellant was found to have some tenderness along the medial joint with no evidence
of effusion. He also noted that appellant was requesting a note providing that he could continue
performing light-duty work.
In an office visit note dated December 19, 2017, Dr. Hayner noted that appellant had been
referred by Dr. Utz for a preoperation physical examination and medical clearance for right knee
arthroscopy scheduled on December 29, 2017. He was medically cleared for surgery and
anesthesia.
Appellant also provided a February 8, 2018 note from Dr. Hayner indicating that appellant
was seen in follow up for his depression.
By decision dated January 30, 2019, OWCP denied modification of its prior decision.
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 the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable

3

Supra note 2.

3

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 if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury. 9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident. 10
Neither the mere fact that a disease 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. 11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted September 22, 2017 employment incident.
OWCP received February 5 and April 16, 2018 progress notes from Dr. Utz diagnosing an
acute right medial meniscus tear in relation to a December 29, 2017 right knee arthroscopy.
However, Dr. Utz’ diagnosis is vague, as he did not provide a specific date of injury or describe a
mechanism of injury in relation to appellant’s medial meniscus tear. 12 Because his diagnosis does

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

T.M., Docket No. 19-0380 (issued June 26, 2019); S.S., Docket No. 18-1488 (issued March 11, 2019).

11

T.M., id.; J.L., Docket No. 18-1804 (issued April 12, 2019).

12

C.L., Docket No. 18-1323 (issued January 3, 2019).

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not comment on whether the September 22, 2017 employment incident caused appellant’s
meniscus tear, it is insufficient to establish appellant’s burden of proof.13
In his September 25, 2017 medical record, Dr. Utz assesses right knee pain and a possible
meniscus tear. The Board has held that, under FECA, the assessment of pain is not considered a
diagnosis, as pain merely refers to a symptom of an underlying condition. 14 Additionally, Dr. Utz’
diagnosis of a “possible meniscus tear” is also of diminished probative value as it is speculative in
nature.15 Accordingly, his September 25, 2017 report is insufficient to establish appellant’s burden
of proof.
Similarly, the medical records of Drs. Whitford and Hayner are also insufficient to
establish appellant’s burden of proof. Dr. Whitford’s September 22, 2017 and Dr. Hayner’s
November 16 and December 19, 2017 medical records only made note of appellant’s acute right
knee pain. As previously noted, pain is not considered a valid diagnosis and; therefore, these
medical records are also of limited probative value and insufficient to establish appellant’s burden
of proof.16
Dr. Hayner’s remaining medical records are of no probative value as they either do not
address appellant’s claimed right knee injury or are dated prior to the accepted September 22, 2017
employment incident.
Additionally, appellant submitted x-ray reports dated September 22 and 25, 2017, neither
of which contain a diagnosis of an injury to appellant’s right knee. The Board has held that reports
of diagnostic tests lack probative value as they do not provide an opinion on causal relationship
between the accepted employment factors and a diagnosed condition. 17
As the medical evidence of record is insufficient to establish a medical diagnosis in
connection with the accepted employment incident, the Board finds that appellant 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.

13

Supra note 9.

14

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
not a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 081102 (issued October 10, 2008).
15

Medical opinions that are speculative or equivocal in character are not well rationalized and are of diminished
probative value. D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).
16

Supra note 12.

17

See J.M., Docket No. 17-1688 (issued December 13, 2018).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted September 22, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Islandia, NY, Employer
__________________________________________

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

Docket No. 21-1311
Issued: February 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 27, 2021 appellant filed a timely appeal from a July 6, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted May 12, 2021 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 6, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On May 27, 2021 appellant, then a 37-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 12, 2021 she sustained a hernia in her left pelvis area as a result
of unloading a truck while in the performance of duty. On the reverse side of the claim form E.M.,
an employing establishment supervisor asserted that appellant did not notify any supervisor at the
time of injury and indicated that she was not injured while in the performance of duty. Appellant
stopped work on May 12, 2021.
In a May 13, 2021 hospital note, Dr. Fazila Lalani, a Board-certified emergency medicine
specialist, diagnosed an abdominal hernia. In a return-to-work note of even date, an unidentifiable
healthcare provider indicated that appellant should remain off work through May 17, 2021.
In a May 17, 2021 note, Dr. Christina Delpin, a Board-certified general surgeon, performed
an x-ray on appellant’s abdomen, noted abdominal pain on her left side, and diagnosed a supra
umbilical hernia.
A May 20, 2021 letter from E.M. noted that on May 19, 2021 the employing establishment
was notified that appellant received treatment in the emergency room on May 13, 2021 and was to
be excused from work until May 17, 2021. However, E.M. alleged that no discharge paperwork
or nature of illness was identified and that she did not notify any supervisor of the workplace
incident.
On May 21, 2021 Elena Reyes, a nurse practitioner, held appellant off work through
May 31, 2021 and noted that, after she underwent a magnetic resonance imaging (MRI) of her
spine for a back injury, she would be reevaluated for a return-to-work date.
In a May 24, 2021 letter, S.S., an employing establishment supervisor, reiterated that
appellant did not notify the employing establishment of her alleged injury at the time it occurred.
On May 27, 2021 E.M. contended that the employing establishment was controverting the
claim because appellant did not report the incident to management and that no medical
documentation was submitted to indicate that the incident occurred during her federal employment.
In a statement of even date, appellant alleged that on May 12, 2021 she was working at the docks
when she began to experience pain in her pelvic area and an inability to walk. As a result of the
pain, she sought medical treatment at the emergency room and was diagnosed with a hernia.
In a development letter dated June 3, 2021, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed to establish her
claim. OWCP afforded appellant 30 days to submit the necessary evidence. In a letter of even
date, it requested that the employing establishment provide further evidence to support that
appellant’s workplace incident did not occur as alleged. OWCP did not receive a response from
either party.
On June 7, 2021 appellant was seen by Carolina Munoz, a nurse practitioner, who
continued to hold her off from work through June 21, 2021.

2

A June 16, 2021 note from Dr. Joseph Elliot Weinstein, an orthopedic surgeon, held
appellant off work through July 7, 2021.
By decision dated July 6, 2021, OWCP accepted that the May 12, 2021 employment
incident occurred as alleged. However, it denied the claim, finding that the medical evidence of
record was insufficient to establish a medical condition causally related to the accepted
employment incident. OWCP concluded, therefore, that appellant had not met the requirements
to establish an injury as defined by FECA.
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 must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 The opinion of the physician must be based upon a complete
factual and medical background, must be one of reasonable medical certainty, and must be

3

Supra note 1.

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).
7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

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supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident. 11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted May 12, 2021 employment incident.
In support of her claim, appellant submitted reports from Dr. Lalani dated May 13, 2021
and Dr. Delpin dated May 17, 2021. While both Dr. Lalani and Dr. Delpin diagnosed a hernia,
neither offered an opinion as to the cause of the hernia. 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. 12 As such, the evidence is insufficient to meet her burden
of proof.13
The remaining medical evidence consists of return-to-work notes dated May 13, 21, June 7
and 16, 2021. However, these notes do not offer a medical diagnosis or opinion that appellant’s
diagnosed hernia was causally related to her May 12, 2021 employment incident. The Board has
held that a medical report lacking a firm diagnosis is of no probative value. 14 This evidence,
therefore, is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized, probative medical evidence sufficient to
establish a diagnosed medical condition causally related to the accepted May 12, 2021
employment incident, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted May 12, 2021 employment incident.

11

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

12

See S.J., Docket No. 20-0310 (issued April 21, 2021); E.B., Docket No. 19-1548 (issued July 14, 2020); L.B., id.;
D.K., Docket No. 17-1549 (issued July 6, 2018).
13

C.C., Docket No. 19-1071 (issued August 26, 2020).

14

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the July 6, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 22, 2022
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1239
Issued: August 6, 2013

Case Submitted on the Record

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

JURISDICTION
On May 17, 2012 appellant, through her attorney, filed a timely appeal from a
February 13, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
and an April 4, 2012 nonmerit decision denying her request for reconsideration. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established a recurrence of total disability
commencing February 25, 2009 causally related to a July 6, 2005 employment injury; and
(2) whether OWCP properly refused to reopen appellant’s case for further reconsideration of the
merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal appellant’s attorney contends that OWCP and the employing establishment
have not addressed appellant’s claim that her light-duty administrative position was changed
when she was offered a new airport position and, therefore, the Board should accept the claim for
a recurrence.
FACTUAL HISTORY
The case was previously before the Board.2 Appellant filed a claim for a recurrence of
total disability commencing February 25, 2009 alleging that she had been reassigned from an
administrative position back to a limited-duty airport position3 due to retaliation for missing
work to undergo psychiatric treatment of a nonemployment-related condition. The Board found
that there remained unresolved discrepancies regarding the nature of the administrative position,
and remanded the case for further development. The facts of the case, as set forth in the prior
decision, are incorporated by reference.
In a January 28, 2010 report, Dr. Leonard Jaffe, an orthopedic surgeon, diagnosed
adhesive capsulitis impingement and opined that appellant had reached maximum medical
improvement. He advised that she was capable of working full time with the following
permanent restrictions: five minutes of reaching, then rest; no reaching above the shoulder; no
repetitive elbow or wrist movements; no pushing, pulling or lifting.
In June 23, 2011 letters to appellant and the employing establishment, OWCP requested
information about the limited-duty assignment at the time of the claimed recurrence of disability.
By letters dated July 25, 2011, it allotted 15 days for a response. Neither the employing
establishment nor appellant provided any further evidence.
By decision dated August 12, 2011, OWCP denied appellant’s claim for a recurrence of
total disability finding that the evidence submitted was insufficient to establish a change in the
nature and extent of the light-duty job requirements or a change in the nature and extent of the
employment-related condition. Appellant had been working in a limited-duty capacity since
June 8, 2008 in an office setting within her medical restrictions. On March 29, 2009 she was
offered an amended limited-duty assignment as exit lane monitor within her medical restrictions
due to a business necessity of the employing establishment. Appellant did not accept the job
offer.
On August 24, 2011 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative and submitted an August 10, 2011 narrative statement indicating
that appellant had been placed on limited duty in an administrative position entering data on a
computer where she did not have to put any strain on her arm. Appellant indicated that her
2

Docket No. 10-1739 (issued May 25, 2011). OWCP accepted that on July 6, 2005 appellant, then a 49-year-old
transportation security screener, sustained right shoulder and arm sprain.
3

The employing establishment offered a limited-duty position on March 20, 2009 as an addendum to the
transportation security officer position that was accepted by appellant on May 15, 2009. The duties included: exit
lane monitor, identification verifier/ticket checker, que monitor, divesture, recomposure and other customer service
oriented positions as in assisting passengers’ questions. Appellant was required to adhere to her medical restrictions
of no lifting/carrying, pulling or pushing and no reaching over the shoulder.

2

limited-duty assignment had been changed to an exit lane monitor at the airport where she was to
sit at the exit lane. She argued that even though this position was written as being within her
current physical restrictions, it was in fact much more physically demanding and required
detaining people who breeched security.
In two undated reports, Dr. Oscar Sandoval, a psychiatrist, diagnosed a head concussion
on February 25, 2009 from which appellant developed headaches, anxiety, panic attacks and
insomnia. He opined that appellant was not emotionally able to perform the job duties required
at the airport where she would be required to give directions, respond to inquiries from the
public, work in a stressful environment which included alarms, machinery, distractions, time
pressure and angry passengers, and where she would be required to identify and locate
potentially life-threatening devices and devices intended to create mass destruction.
Dr. Sandoval recommended that appellant continue in her office position.
A hearing was held via telephone before an OWCP hearing representative on
December 14, 2011. Appellant testified that she was not able to perform the duties of the airport
position as she would not be able to physically stop a breach of security and argued that the
position would violate the employing establishment’s policies against 30-minute rotations. The
hearing representative held the case open for 30 days for the submission of additional evidence.
By decision dated February 13, 2012, an OWCP hearing representative affirmed the
August 12, 2011 decision finding that appellant sustained a nonemployment-related injury
causing her disability for 10 days commencing February 25, 2009 and that a light-duty position
was available to her within her work restrictions. The hearing representative noted that
appellant’s desire to work in a particular position was not a valid basis for a recurrence of
disability.4 She also noted that the job offer did not indicate that appellant would be required to
restrain anyone in an emergency and appellant provided no evidence that it violated the
employing establishment’s policy.
On March 20, 2012 appellant requested reconsideration and submitted a March 15, 2012
narrative statement by appellant reiterating her previous statements.
By decision dated April 4, 2012, OWCP denied appellant’s request for reconsideration of
the merits finding that she did not submit pertinent new and relevant evidence and did not show
that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
LEGAL PRECEDENT -- ISSUE 1
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 has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.5 This term also means an inability to work that takes place when a light-duty
4

See Samuel F. Mangin, Jr., 42 ECAB 671 (1991).

5

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

3

assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.6
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must establish that she was no longer able to perform the duties of the position due
to either a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the limited-duty job requirements.7
A person who claims a recurrence of disability due to an accepted employment-related
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 the
disabling condition is causally related to the employment injury and supports that conclusion
with sound medical reasoning.8
ANALYSIS -- ISSUE 1
Appellant returned to work in a limited-duty assignment as a transportation security
officer on May 15, 2008. She began working in a limited-duty capacity in an office setting on
June 8, 2008. She claims a recurrence of total disability beginning February 25, 2009 as a result
of her July 6, 2005 employment injury. Appellant must show that she was no longer able to
perform the duties of the position due to either a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the limited-duty job requirements.
Appellant has alleged that her administrative light-duty assignment was withdrawn in
retaliation for her leave of absence due to a nonemployment-related injury and treatment thereof.
The Board finds that the record establishes the administrative position was not withdrawn due to
retaliation but out of a business necessity. The Board further finds that the evidence does not
establish that appellant is medically incapable of performing the duties of the position due to a
change in the nature and extent of appellant’s light-duty job requirements. The physical
requirements of the exit lane monitor and those of the administrative position were the same.
6

Id.

7

See A.M., Docket No. 09-1895 (issued April 23, 2010). See also Joseph D. Duncan, 54 ECAB 471, 472 (2003);
Terry R. Hedman, 38 ECAB 222, 227 (1986).
8

See B.B., Docket No. 09-1858 (issued April 16, 2010). See also Robert H. St. Onge, 43 ECAB 1169 (1992);
Dennis J. Lasanen, 43 ECAB 549 (1992).

4

In his reports, Dr. Sandoval diagnosed a head concussion on February 25, 2009 from
which appellant developed headaches, anxiety, panic attacks and insomnia. He opined that
appellant was not emotionally able to perform the job duties required at the airport and
recommended that appellant continue in her office position. On January 28, 2010 Dr. Jaffe
diagnosed adhesive capsulitis impingement and advised that appellant was capable of working
full time with the following permanent restrictions: five minutes of reaching, then rest; no
reaching above the shoulder; no repetitive elbow or wrist movements; no pushing, pulling or
lifting. Although Dr. Sandoval suggested a change in the appellant’s ability to perform the
duties of the exit lane monitor, he explicitly indicated that the medical condition supporting his
finding was a nonemployment-related condition. Although Dr. Sandoval recommended
continued work in an office position, neither he nor Dr. Jaffe indicated a particular change in the
nature of appellant’s physical condition arising from the employment injury, which prevented
her from performing the light-duty airport position.9 Therefore, appellant did not meet her
burden of proof to establish a claim.
On appeal appellant’s attorney contends that OWCP and the employing establishment
have not addressed appellant’s claim that her light-duty administrative position was changed
when she was offered a new airport position and, therefore, the Board should accept the claim for
a recurrence. For the reasons stated above, the Board finds that appellant has not established that
she was no longer capable of performing the exit lane monitor position due to her accepted
shoulder condition.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.10 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).11
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.12 To be entitled to a merit review
9

See Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship
are entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
10

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
11

See Annette Louise, 54 ECAB 783, 789-90 (2003).

12

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

5

of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.13 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.14
ANALYSIS -- ISSUE 2
In support of her March 20, 2012 reconsideration request, appellant submitted a narrative
statement dated March 15, 2012. The two page dated statement is a recitation of her claim
restating her arguments that she had previously made. The Board notes that submission of this
statement did not require reopening appellant’s case for merit review. As OWCP denied her
claim based on the lack of supportive medical evidence and her narrative statement merely
reiterates factual history of record, appellant’s statement is not relevant and pertinent and is not
sufficient to require OWCP to reopen her claim for consideration of the merits.15
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law, nor did she advance a relevant legal argument not previously
considered by OWCP. As she did not meet any of the necessary requirements, appellant is not
entitled to further merit review.
CONCLUSION
The Board finds that appellant failed to meet her burden to establish that she sustained a
recurrence of total disability commencing February 25, 2009 causally related to a July 6, 2005
employment injury due to lack of medical evidence. The Board further finds that OWCP
properly refused to reopen appellant’s case for further reconsideration of the merits pursuant to 5
U.S.C. § 8128(a).

13

20 C.F.R. § 10.607(a).

14

Id. at § 10.608(b).

15

See James W. Scott, 55 ECAB 606 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the April 4 and February 13, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Marion, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1246
Issued: April 11, 2013

Case Submitted on the Record

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

JURISDICTION
On May 18, 2012 appellant filed a timely appeal from the May 2, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her emotional condition
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On February 15, 2012 appellant, then a 31-year-old nurse, filed a claim for occupational
disease, alleging an emotional condition as a result of her federal work conditions. She
1

5 U.S.C. § 8101 et seq.

explained that working in a small cubicle aggravated her depression and anxiety, which included
extreme claustrophobia. Appellant first became aware of her condition on December 1, 2011
and realized it was causally related to her employment on December 29, 2011. She had
mentioned her working conditions to her supervisor several times and provided physician’s notes
as required.
On March 6, 2012 appellant related that she had noticed that her anxiety became
heightened as soon as she was moved to a cubicle. She asked numerous times to be moved for
her panic attacks. Appellant had been hospitalized once for postpartum depression over five
years prior.
On March 27, 2012 OWCP requested that appellant submit further factual and medical
evidence in support of her claim.
In a statement dated April 25, 2012, the employing establishment controverted
appellant’s claim. It noted that she had informed her supervisor on more than one occasion that
she had ongoing personal problems related to a divorce, the custody of her son and being a single
parent with little support, all of which contributed to her anxiety and stress.
On April 28, 2012 OWCP received supervisory notes from the employing establishment.
The notes document that appellant was reassigned to a cubicle on the second floor on
November 14, 2011. On that day, she had related that she was not sure she could work in the
assigned cubicle because she felt claustrophic in that area. Appellant was advised that the only
other work space was another identical cubicle. She was requested to try the new work location
and determine whether there was a problem. The November 16, 2011 supervisory notes state
that appellant related that, when she started moving into the cubicle, she did not believe that she
could work there as she was claustrophobic. She was advised that she could submit a reasonable
accommodation request, through the occupational health nurse.
In an e-mail dated
November 16, 2011, appellant wrote to her supervisor: “Is there any way you could ask the
space committee if I could use that empty cubicle?” On December 29, 2011 it was noted that she
had been hospitalized from December 8 to 20, 2011. Appellant returned to work on
December 27, 2011. On December 29, 2011 she relocated her work area to another desk,
without prior supervisory knowledge. Appellant was again hospitalized on December 29, 2011.
Appellant submitted psychiatric assessments by Dr. Naeem A. Qureshi, a Board-certified
psychiatrist, dated September 11, 2011 to March 28, 2012. Dr. Qureshi diagnosed major
depressive disorder, personality disorder, bipolar disorder and anxiety disorder and
recommended that she remain off work for a period of time. He noted that appellant had a long
history of mental illness and listed the possible causes of her condition as divorce, health issues,
occupational problems, limited coping skills and relationship issues.
A memorandum dated April 5, 2012 from the employing establishment advised that
appellant had been assigned to part-time transitional duty as a result of her anxiety and
claustrophobia.
In a May 2, 2012 decision, OWCP denied appellant’s claim on the grounds that she had
failed to establish a compensable factor of employment in the performance of duty.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that the injury was sustained in the performance of duty The
employee must also establish that any disability and specific condition for which compensation
is claimed is causally related to the employment injury.2
To establish that he or she sustained an emotional condition in the performance of duty, a
claimant must submit the following:
(1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his or her condition,
(2) rationalized medical evidence establishing that she has an emotional or psychiatric disorder;
and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
With regard to personnel and administrative matters, the Board has held that these are
generally related to the employment as functions of the employer rather than the work duties of
the employee.6 Generally, actions taken unrelated to the employee’s regular or specially
assigned work duties do not fall within coverage of FECA.7 An administrative or personnel
matter will be considered as a compensable factor where the evidence of record establishes error
or abuse on the part of managers or supervisors.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Trudy A. Scott, 52 ECAB 309 (2001); see Lillian Cutler, 28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Lillian Cutler, supra note 3.

6

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

7

See Donny T. Drennon-Gala, 56 ECAB 469 (2005); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).

3

ANALYSIS
OWCP denied appellant’s claim by decision dated May 2, 2012 finding that she failed to
establish a compensable factor of employment. The Board will affirm the May 2, 2012 decision,
on the grounds that she has not established that her emotional condition arose from a factor of
her work as a nurse.
In denying the claim, OWCP relied on Tanya A. Gaines,8 which stated that “frustration at
not being permitted to work in a particular environment is not a covered factor of employment
under FECA.” However, OWCP’s reliance on this case is misplaced. In Gaines, the crux of the
claimant’s complaint was that she was a highly motivated employee, who wanted praise for her
work and advancement to a GS-11 position. The Board noted that the employer was not
claiming that her emotional condition arose because she could not perform her regular or
specially assigned employment duties; on the contrary, appellant’s frustration arose because she
was not promoted to a position she felt she deserved.9
In Lillian Cutler,10 a case which also involved an employee becoming upset over not
receiving a promotion, the Board distinguished the scenarios where an employee has a disabling
emotional condition having some kind of causal relationship to the employment. The Board
stated the following:
“Where an employee experiences emotional stress in carrying out his employment
duties or has fear and anxiety regarding his ability to carry out his duties and the
medical evidence establishes that the disability resulted from his emotional
reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of the employment. This is true where the
employee’s disability resulted from his emotional reaction to his day-to-day
duties. The same result is reached where the emotional disability resulted from
the employee’s emotional reaction to a special assignment or requirement
imposed by the employing establishment or by the nature of his work.
“In contrast ... assuming that appellant was unhappy doing inside work, desired a
different job, brooded over the failure to give him the kind of work he desired for
which the establishment considered him unsuitable and as a result of such
brooding appellant became emotionally disturbed, causing an outbreak of
dermatitis; this does not establish ‘a personal injury sustained while in the
performance of duty’ within the meaning of FECA.”

8
9

Id.

10

Lillian Cutler, supra note 3.

4

In the present case, appellant alleged that she was relocated to work in a small cubicle. In
Len V. Frost,11 the relocation of a work group resulted in the erection of a wall between
coworkers. The Board noted as follows:
“Insofar as appellant’s emotional condition is attributed to his frustration at failing
to effect desired changes in the work environment, it is not covered under
[FECA]. Assignment of work duties and work space is a management
prerogative, so that appellant’s reaction to his assignment of work space would be
covered only if he could establish error or abuse by the employing establishment,
which he has not done.
What can be covered under [FECA] however is appellant’s reaction to his actual
physical work environment. Appellant attributed his emotional condition not only
to the assignment of space and the refusal of is supervisor to change this
assignment, but also to the closeness of the space itself, stating that it resulted in
isolation and claustrophobia which led to distress and anxiety attacks.”12
Appellant alleged claustrophobia due to working in a cubicle on December 1, 2011 and
attributed its relationship to her employment on December 29, 2011. The supervisory notes from
the employing establishment indicate that she related concerns regarding claustrophobia upon
her reassignment to a cubicle on November 14, 2011. On November 16, 2011, however,
appellant e-mailed her supervisor inquiring as to whether she could work in a different empty
cubicle. She has not explained why working in the assigned cubicle, but not the empty cubicle,
gave rise to claustrophobia; rather, the evidence reflects her preference to work in one part of the
office space over another. Appellant has not explained why the assigned cubicle would give rise
to the alleged condition. The Board also finds that she has not submitted any medical evidence
in fact diagnosing claustrophobia, or relating any of her other diagnosed conditions to working in
a cubicle.13
The Board finds that appellant has not established a factual basis for her emotional
condition claim. Appellant has not discharged her burden of proof to establish an emotional
condition in the performance of duty.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

11

Docket No. 95-2837 (issued October 8, 1997).

12

See also Kathleen D. Walker, 42 ECAB 603 (1991); Brenda Getz, 39 ECAB 245 (1987).

13

See C.W., Docket No. 10-1043 (issued February 17, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 2, 2012 is affirmed.
Issued: April 11, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6