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

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

Docket No. 08-1541
Issued: December 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 6, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated April 18, 2008, which affirmed
a November 20, 2007 decision, denying her claim for wage-loss benefits. Under 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 was entitled to wage-loss compensation beginning
August 24, 2007 and continuing for total disability causally related to her accepted employment
injury.
FACTUAL HISTORY
On July 11, 2007 appellant, a 50-year-old part-time flexible letter carrier, filed a
traumatic injury claim alleging that, on July 7, 2007, she sustained an injury to her right foot and
ankle when she slipped and fell on the sidewalk. She returned to light duty on July 11, 2007.
The Office accepted appellant’s claim for ankle sprain.

An August 23, 2007 right ankle computerized tomography (CT) scan, read by Dr. Doug
Wurzbach, a Board-certified diagnostic radiologist, revealed a hairline fracture in the distal tibia.
The record reflects that appellant accepted a modified assignment as a limited-duty clerk
on August 1, 2007. The position was comprised of answering the telephones, computer work
and sit down assignments on an as-needed basis for four hours per day. The physical
requirements were limited walking, sit down assignments and no standing for prolonged periods.
Dr. Charles M. Perry, a podiatrist and appellant’s physician, submitted several reports
including duty status reports dated August 20 and 22, 2007 and an August 23, 2007 disability
certificate in which he indicated that appellant could perform nonweight-bearing duty. In report
dated September 4, 2007, he noted that the August 23, 2007 CT scan confirmed that appellant
sustained a hairline fracture of her right tibia. Dr. Perry opined that he believed that such
fracture was present when he saw her on July 9, 2007.
On September 1, 2007 appellant filed a Form CA-7 claim for wage-loss compensation for
the period July 23 through 30, 2007. On September 6, 2007 she filed a Form CA-7 claim for
compensation beginning August 24, 2007 and continuing. The employing establishment filled in
the forms and indicated that appellant was terminated for “unsatisfactory performance.”
In an August 24, 2007 letter, the employing establishment notified appellant that her
employment was terminated effective that same date. Appellant was advised that her termination
was due to “unsatisfactory performance” during her probationary period. An August 24, 2007
employee evaluation and/or probationary report reflected that appellant was appointed to her
position on June 9, 2007 and that the probationary period would end on September 9, 2007. On
July 9, 2007 appellant received a rating at the end of the 30-day period indicating unsatisfactory
performance levels in the areas of work quality and quantity, dependability and personal
conduct. The 60-day rating reflected unsatisfactory performance levels in every category. The
90-day rating contained unsatisfactory performance in every category with the exception of work
relations The supervisor indicated that appellant was never able to carry her route in the allotted
time and that she would not recommend her for retention or rehire.
In an August 30, 2007 letter, Annette Clark, a health and resource management specialist,
indicated that appellant was a PTF carrier working in her 90-day probationary period. She
indicated that appellant was terminated effective August 24, 2007 due to unsatisfactory
performance. Ms. Clark also enclosed a copy of the letter carrier’s contract related to
probationary periods. The contract revealed that the “employer shall have the right to separate
from its employ[ee] any probationary employee at any time during the probationary period” and
also that any probationary employee so separated did not have the right to file a grievance. In a
letter dated September 5, 2007, appellant alleged that her evaluation was based upon only two
weeks of carrying mail prior to the July 7, 2007 injury.
By letter dated September 28, 2007, the Office requested that the employing
establishment provide additional information, including clarification regarding the reason for
appellant’s termination.

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In an October 1, 2007 report, Dr. Perry indicated that appellant had an “impacted
nondisplaced hairline fracture oriented obliquely in the anterior-posterior pain over the distal
tibia.” In an October 10, 2007 report, he opined that appellant was under his care for a right
ankle fracture from August 23, 2007 to the present. Dr. Perry indicated that she was restricted
from standing and walking for long periods of time.
In an October 26, 2007 letter, Ms. Clark indicated that appellant was terminated during
the probationary period due to unsatisfactory work performance and quality. She provided a
statement from Vickie Schnuerer, the manager of the employing establishment, who stated that
appellant carried her route for about a month prior to her on-the-job injury. Ms. Schnuerer
indicated that appellant was never able to carry the route unassisted in the allotted time. She
indicated that appellant could not carry the route unassisted and that she could not sort to
standard or carry the route in the allotted time. Ms. Schnuerer indicated that appellant’s 30-day
evaluation was unsatisfactory as to work quantity, quality, dependability and personal conduct.
She explained that the only time frame that could be utilized to make a decision as to whether
appellant could be a city letter carrier was the period from June 9 to July 7, 2007. Ms. Schnuerer
indicated that appellant did not demonstrate that she could satisfactorily perform the duties of a
letter carrier and that her performance did not warrant retaining her as a letter carrier. She
indicated that appellant’s injury had no bearing on the decision. Additionally, she referred to the
collective bargaining agreement in support of her action.
By decision dated November 20, 2007, the Office denied appellant’s claim for wage-loss
compensation beginning August 24, 2007 and continuing. It found that the medical evidence did
not establish that the claimed period of wage loss was causally related to the accepted work
injury or that the employer failed to accommodate her work limitations. Appellant was advised
that she was entitled to continuation of pay through August 21, 2007 and she would receive
appropriate wage-loss compensation for August 22 and 23, 2007.
On November 20, 2007 the Office received a letter from appellant dated October 8, 2007.
Appellant alleged that she was fired unjustly. She alleged that her employment injury prevented
her from performing her job and that she received unsatisfactory ratings due to the injury. The
Office received a copy of Dr. Perry’s October 10 and November 14, 2007 reports. Dr. Perry
indicated that appellant’s right ankle fracture was a direct result of her July 7, 2007 work injury.
A November 26, 2007 CT scan of the right ankle read by Dr. James M. Joseph, a Board-certified
diagnostic radiologist, revealed no evidence of fracture or osseous abnormality. Dr. Joseph
indicated that the hairline fracture observed in August 2007 was no longer present and opined
that it had healed.
On December 17, 2007 appellant’s representative requested a hearing, which was held on
March 11, 2008.1

1

By letter dated December 10, 2007, appellant requested reconsideration. She indicated that she received
continuation of pay from July 24 to 30, 2007. Appellant indicated that she did not receive compensation from
August 24, 2007 and continuing. In a letter dated January 15, 2008, her representative requested that the Office
dismiss the reconsideration request and proceed with the hearing.

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In a report of February 8, 2008, Dr. Perry stated that diagnostic tests showed that the
hairline fracture had healed but that appellant continued to have pain, which prevented her from
walking long distances and carrying mail. He referred appellant to a neurologist for her
continued pain.
The Office received a March 6, 2008 report from Dr. Roy W. King, an osteopath
specializing in neurology, who indicated that appellant was seen for pain in the limb and
recommended therapy.
By decision dated April 18, 2008, the Office hearing representative affirmed the Office’s
November 20, 2007 decision. The Office hearing representative noted that appellant indicated
that she was paid for lost time from work up to August 24, 2007 and denied appellant’s claim for
wage-loss compensation for the period August 24, 2007 and continuing. The Office hearing
representative found that the medical evidence failed to establish that appellant was disabled due
to residuals of her accepted injury and that the record indicated that she was terminated for cause
and not because of her work injury.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing that the essential elements of his or her claim by the weight of the
evidence.4 Under the Act, the term disability is defined as an inability, due to an employment
injury, to earn the wages the employee was receiving at the time of injury, i.e., an impairment
resulting in loss of wage-earning capacity.5 For each period of disability claimed, the employee
has the burden of establishing that he or she was disabled for work as a result of the accepted
employment injury.6
Whether a particular injury causes an employee to become disabled for work and the
duration of that disability are medical issues that must be proved by a preponderance of
probative and reliable medical opinion evidence.7 The fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.8
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
2

The hearing representative also directed that the Office accept the claim for a resolved hairline fracture of the
right ankle.
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

Gary L. Watling, 52 ECAB 278 (2001).

8

Manual Garcia, 37 ECAB 767 (1986).

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claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.9
ANALYSIS
Appellant submitted claims for compensation for the period August 24, 2007 and
continuing. She had the burden of establishing by the weight of the substantial, reliable and
probative evidence, that she was totally disabled as a result of her accepted employment-related
injury during the alleged period. This burden includes providing medical evidence from a
physician who concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.10 The Office properly denied
compensation because appellant failed to provide sufficient medical evidence to support that she
was disabled due to residuals of her accepted condition.
The medical evidence does not establish that appellant was totally disabled during the
period in question. On the contrary, appellant’s physician, Dr. Perry, repeatedly and consistently
indicated that she could be on nonweight-bearing duty for work and that she should be restricted
from standing and walking for long periods of time. Appellant accepted a modified-duty
position on August 1, 2007 and continued in this position until she was terminated on
August 24, 2007. There is no medical evidence of record that contains an opinion that appellant
was totally disabled from August 24, 2007 and continuing due to her work injury.
Appellant does not contend that she was totally disabled or that the employing
establishment failed to provide a light-duty job, which accommodated her restrictions. Rather,
she contends that she was unjustly terminated because her injury prevented her from performing
her job and that she received unsatisfactory ratings as a result. The record, however, reflects that
appellant was terminated from her position with the employing establishment on August 24,
2007 for “unsatisfactory performance” during her probationary period. The employing
establishment indicated that, during the probationary period, an employee could be separated at
any time without the right to file a grievance. Ms. Clark provided a statement from the manager,
Ms. Schnuerer, who indicated that appellant was never able to carry her route prior to the injury,
nor could she sort or carry her route in the allotted time. She stated that appellant’s marks for the
30-day evaluation were unsatisfactory as to work quantity, quality, dependability and personal
conduct. Ms. Clark also indicated that it was the only time frame that could be utilized to
determine whether appellant could perform the duties of a city letter carrier and that her
performance did not demonstrate that she should be retained.
The Board has held that an employee is not disabled within the meaning of the Act where
she has been provided appropriate light duty by an employing establishment and the light duty is
terminated for reasons unrelated to her physical impairment.11 There is no evidence that
appellant was terminated due to her physical inability to perform her assigned duties or that she
9

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

10

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

11

See Major W. Jefferson, III, 47 ECAB 295 (1996).

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stopped work due to residuals of her accepted conditions. As there is no evidence in the record
that she was not capable of performing her assigned duties during the period in question, she had
no disability within the meaning of the Act.12
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
entitled to compensation for wage loss beginning August 24, 2007, as she failed to show that she
was disabled within the meaning of the Act.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: December 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See John W. Normand, 38 ECAB 1378 (1988) (finding that a claimant cannot be considered to have
compensable disability when he has been provided appropriate light duty by the employing establishment and the
light duty is terminated as a result of conduct he engaged in for reasons unrelated to his physical impairment).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, SOUTHERN
CONNECTICUT PROCESSING &
DISTRIBUTION CENTER, Wallingford, CT,
Employer
__________________________________________

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

Docket No. 08-54
Issued: April 25, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 5, 2007 appellant filed a timely appeal from a September 10, 2007 merit
decision by a hearing representative of the Office of Workers’ Compensation Programs that
denied, in part, her claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
recurrence of disability from November 28 to December 28, 2006 causally related to her
accepted August 2004 employment injury.
FACTUAL HISTORY
On April 13, 2005 appellant, then a 56-year-old automation clerk, filed an occupational
disease claim stating that she developed a tingling sensation in her left arm from repetitive

reaching on the job. In a June 6, 2005 report, Dr. Gerald Becker, a Board-certified orthopedic
surgeon, noted appellant’s previous history of a spinal fusion at the C4-5 level, diagnosed left
disc herniation at C5-6 and opined that her condition was caused by “repetitive trauma at work
superimposed upon her previous fusion at the C4-5 level above C5-6.” The Office accepted
appellant’s claim for cervical intervertebral disc discord with myelopathy at C5-6 and paid
appropriate compensation.
Appellant stopped work on December 18, 2005 and, on
December 20, 2005, she underwent a C5-6 anterior fusion with left iliac crest bone graft.
Dr. Becker performed the procedure and noted preoperative and postoperative diagnoses of C5-6
disc herniation. The Office authorized the surgery.
On September 12, 2006 appellant underwent a functional capacity evaluation, performed
at Dr. Becker’s request, which reflected that she was capable of performing light-duty work for
eight hours per day. In an October 4, 2006 note, Dr. Becker indicated that appellant’s neck pain
continued and that physical examination demonstrated tightness of her paracervical musculature.
He concluded that appellant had “ongoing pain status post injury and subsequent cervical
fusion.” In a November 3, 2006 work capacity evaluation, Dr. Becker advised that appellant
could work with restrictions for eight hours per day. In a report dated the same day, he explained
that appellant had continuing pain and mildly reduced range of motion in her cervical spine.
Dr. Becker noted that appellant’s functional capacity evaluation specified that she could perform
light-duty work for eight hours per day, but noted that she would require frequent position
changes as she had difficulty standing for more than 15 minutes at a time.
On November 1, 2006 the Office referred appellant to Dr. Michael Opalak, a Boardcertified neurosurgeon, for a second opinion to determine her work capacity.
Appellant returned to light-duty work, eight hours per day, effective November 18, 2006.
Her light-duty job offer noted her restrictions against reaching above shoulder level, standing for
more than 15 minutes and pushing, pulling or lifting greater than 15 pounds. It indicated that
appellant’s job responsibilities would include sorting mail in letter and flat cases as well as tying
out mail in the cases within her restrictions. The offer noted: “You will get mail within
restrictions.” Appellant left work early on November 24, 2006, claiming increasing pain. She
stopped work completely effective November 28, 2006.
Dr. Opalak examined appellant and prepared a report on November 27, 2006. He noted
appellant’s complaints of neck pain, weakness and headaches aggravated by activity, bending,
sitting, standing and walking. Dr. Opalak advised that appellant underwent a cervical fusion in
December 2005, which had healed by July 2006 although she continued to complain of
significant neck pain. He noted that appellant had “marked limitation of range of motion of her
neck,” but that postoperative diagnostic testing revealed “nice fusion” of the C4-5 and C5-6
discs. Dr. Opalak concluded that appellant could return to light duty but could not work in her
date-of-injury job as an automation clerk. He explained that she still demonstrated significant
myelopathy, which would prevent her from performing her regular job. Dr. Opalak stated that
appellant could work light duty, eight hours a day, in accordance with the functional capacity
evaluation, with a permanent lifting restriction of 15 pounds, “because her myelopathy is going
to automatically interfere with her capacity to work heavier amounts.” In a work capacity
evaluation also dated November 27, 2006, he advised that appellant could work for six and a half
hours per day with permanent restrictions.

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On December 8, 2006 appellant submitted a claim for compensation for leave without
pay from November 24 to December 8, 2006. On December 12, 2006 she filed a claim for
recurrence of disability. Appellant indicated that she experienced a recurrence of disability on
November 24, 2006. She explained that she had continuing neck pain and was unable to take
medication at work, as her prescribed medication made her drowsy. On December 22, 2006
appellant submitted a claim for compensation for leave without pay from December 9
to 22, 2006.
On January 5, 2007 the Office found a conflict in the medical evidence between
Dr. Becker and Dr. Opalak concerning the degree of appellant’s disability for work. It referred
appellant to Dr. Harry Engel, a Board-certified neurosurgeon, to determine whether she was able
to return to work and, if so, in what capacity.
In a December 29, 2006 work capacity evaluation Dr. Becker indicated that appellant
could work in a limited-duty capacity for between four and six hours per day. In a report dated
the same day, he stated that appellant “continues to have pain in her neck aggravated by her
return to work.” Dr. Becker explained that when appellant returned to work she was required to
case mail, which “involved a fair amount of reaching forward and this aggravated her neck
pain.” He advised that appellant had tight neck muscles and reduced range of motion and that
x-rays taken at the examination revealed some anterior subluxation at the C3-4 level, “likely
aggravated by [her] bending forward at work.” Dr. Becker noted that appellant was unable to
reach forward or do any casing of mail, but could perform other sedentary tasks.
On January 10, 2007 the employing establishment offered appellant a limited-duty
position for six hours per day. She accepted the position and returned to work effective
January 12, 2007.
Dr. Engel examined appellant and prepared a medical report on January 26, 2007. He
noted her history of C5-6 disc herniation and surgical treatment and her complaints of neck and
left upper extremity pain, which she attributed to repetitive reaching, lifting, bending and
twisting. Dr. Engel noted that, while appellant had returned to work, she was only able to work
six hours in each shift, as her arms and neck would then become so fatigued that she would have
to stop. He also noted that appellant was unable to take her medication at work, as it made her
drowsy. Upon physical examination, Dr. Engel found that appellant’s neck range of motion was
significantly reduced and painful, although her lateral compression tests were negative. He
concluded that appellant was able to work for six hours per day on a restricted basis. Dr. Becker
explained that appellant was restricted from frequent reaching, as it caused her “further
aggravation, discomfort and muscle spasm.” In an accompanying work capacity evaluation, he
noted that appellant was capable of working for six hours per day with permanent physical
restrictions.
By decision dated February 13, 2007, the Office denied appellant’s claim for a recurrence
of disability on the grounds that “the evidence of file fails to establish that the claimed recurrence
is causally related to the approved injury.”

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In a February 26, 2007 note, Dr. Becker advised that appellant had ongoing pain and
reduced range of motion in her neck “status post work injury and subsequent fusion between C4
and C6.”
On March 7, 2007 appellant requested an oral hearing, which was held on July 10, 2007.
In an April 23, 2007 report, Dr. Becker indicated that appellant’s neck pain and reduced range of
motion continued.
In a June 5, 2007 form report, an Office medical adviser noted that appellant’s workrelated aggravation of cervical disc degeneration had not yet resolved. He indicated that
appellant’s anticipated recovery date was unknown, but that she would “possibly never” recover
from her accepted work injury.
On June 18, 2007 Dr. Becker again noted appellant’s continuing complaints of neck pain
and numbness. He advised that she could work limited duty, six hours per day, “indefinitely.”
By decision dated September 10, 2007, the hearing representative affirmed the Office’s
decision denying appellant’s claim for a recurrence of disability in part, finding that she was not
entitled to compensation for a recurrence of disability between November 28 and December 28,
2006, but was entitled to compensation between December 29, 2006 and January 12, 2007. She
explained that, effective December 29, 2006, Dr. Becker changed appellant’s work restrictions,
but the employing establishment did not offer her a job in accordance with her new restrictions
until January 12, 2007. However, the hearing representative concluded that appellant’s limitedduty job did not exceed the restrictions in place between November 28 and December 28, 2006,
and therefore she had not established a recurrence of disability for that period.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of the
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden, the employee must show either a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty requirements.1
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty 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

1

Terry R. Hedman, 38 ECAB 222 (1986).

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physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.2
ANALYSIS
In the instant case, the medical evidence does not establish a change in the nature and
extent of appellant’s injury-related condition between November 28 and December 28, 2006.
The record reflects that appellant returned to a limited-duty job effective November 18, 2006.
The job required her to work light duty for eight hours per day with restrictions against twisting,
reaching above shoulder level or lifting greater than 15 pounds. The employing establishment
noted that appellant would be required to sort letters in flats and cases, but would only receive
mail within her restrictions. The record reflects that the requirements of the light-duty job were
commensurate with those recommended in the September 12, 2006 functional capacity
evaluation, with which appellant’s treating physician, Dr. Becker, concurred on
November 3, 2006.
On November 27, 2006 Dr. Opalak performed a second opinion examination, after which
he concluded that appellant’s significant myelopathy prevented her from working in her
regular-duty job as an automation clerk. However, he concluded that appellant was capable of
working for eight hours per day in a light-duty job. Dr. Opalak recommended that appellant
work within a 15-pound lifting restriction “because her myelopathy is going to automatically
interfere with her capacity to work heavier amounts.” The record reflects that appellant’s
light-duty job, which she began on November 18, 2006 and stopped on November 28, 2006, was
commensurate with Dr. Opalak’s recommendation that she work eight hours per day in a
light-duty job, with a 15-pound lifting restriction. The Board notes that in a work capacity
evaluation also prepared on November 27, 2006 Dr. Opalak recommended that appellant work
for six and a half hours per day. However, Dr. Opalak did not explain the discrepancy between
his narrative report, finding that appellant could work eight hours daily and his form report,
indicating that she could work six and one half hours daily. The Board finds that appellant’s
light-duty job was commensurate with the recommended work restrictions within the functional
capacity evaluation, with which her treating physician agreed and with the recommendations in
Dr. Opalak’s November 27, 2006 narrative medical report.3 Accordingly, the Board finds that
the medical evidence establishes that appellant was able to work her light-duty position from
November 28 and December 28, 2006 and that there had been no change in the nature and extent
of appellant’s injury-related condition.
In addition, the Board finds that appellant has not established a change in the nature and
extent of her light-duty job requirements. Appellant was offered, and accepted, a limited-duty
job beginning effective November 18, 2006.
She worked in her light-duty job from
2

20 C.F.R. § 10.5(x).

3

Following appellant’s referral to Dr. Opalak, the Office found a conflict in the medical evidence between
Drs. Opalak and Becker regarding the degree of appellant’s disability and referred appellant to Dr. Engel to resolve
the conflict. The Board notes, however, that there was no conflict between Drs. Becker and Opalak as each
physician offered similar light-duty restrictions. See 5 U.S.C. § 8123(a). In any event, it is not necessary for the
Board to review Dr. Engel’s report as Dr. Engel did not address, and the Office did not request that he address,
appellant’s ability to work from November 28 to December 28, 2006.

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November 18 to 24, 2006. On November 24, 2006 appellant left work early, claiming increased
pain. She stopped work completely on November 28, 2006. The job offer required appellant to
do some mail casing, but assured her that she would only be assigned mail to case within her
restrictions. The job offer noted appellant’s lifting restriction of 15 pounds and provided for
eight hours of light work per day. The Board finds that this job was commensurate with
appellant’s work restrictions at the time the employing establishment made the offer and that
there is no evidence that the employing establishment either withdrew the position or changed its
terms during the time she worked under the terms of the assignment. Appellant has not asserted
that the employing establishment changed the terms of the light-duty job; rather, she simply
states that she was in too much discomfort to continue working. Accordingly, the Board finds
that appellant has not established a change in the nature and extent of the light-duty job
requirements.
The Board notes that Dr. Becker changed appellant’s job restrictions effective
December 29, 2006. The hearing representative noted this change and awarded appellant
compensation for a recurrence of disability during the time that the employing establishment did
not make appropriate light duty available for appellant, between December 29, 2006 and
January 12, 2007. The Board finds, however, that the record does not support appellant’s claim
for a recurrence of disability between November 28 and December 28, 2006, the only issue
before the Board.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability between November 28 and December 28, 2006, causally
related to her accepted occupational disease.

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ORDER
IT IS HEREBY ORDERED THAT the September 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., 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. 11-168
Issued: August 19, 2011

Case Submitted on the Record

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

JURISDICTION
On October 26, 2010 appellant filed a timely appeal from a September 30, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his traumatic
injury claim and a July 16, 2010 nonmerit decision denying his request for reconsideration.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 met his burden of proof to establish that he
sustained a left shoulder injury in the performance of duty on March 15, 2010; and (2) whether
OWCP properly denied his request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 15, 2010 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a left shoulder injury when he was lifting an empty
plastic tray. Appellant sustained his injury, filed his claim, stopped work and notified his
supervisor on the same date. The employing establishment controverted the claim.
In a March 15, 2010 progress note, Dr. Andrea Quintana, a physician of osteopathic
medicine, reported that appellant was lifting a tray at work that morning when he experienced
sudden neck pain and pain in his left shoulder, arm and hand. She diagnosed neck pain and pain
in the limb. In an April 9, 2010 progress note, Dr. Quintana also diagnosed muscle spasm.
In March 15 and 25, 2010 duty status reports (Form CA-17), Carol Markowitz, a
registered nurse, noted that appellant was lifting a tray and felt pain in his left shoulder. She
diagnosed pain in the left arm, hand and neck and restricted appellant from working.
In a March 22, 2010 medical report, Dr. Steven Peyser, Board-certified in radiology,
reported that a magnetic resonance imaging (MRI) scan of appellant’s cervical (C) spine showed
spondylitic changes with bulging C5-6 resulting in mild left-sided foraminal stenosis. He also
diagnosed focal spondylitic ridging in C6-7 with mild left-sided foraminal stenosis as well.
In medical reports dated April 5 and 9, 2010, Ms. Markowitz reported that the MRI scan
of appellant’s c-spine showed bulging with foraminal stenosis.
In an April 6, 2010 medical report, Dr. Patrick Reid, Board-certified in otolaryngology,
stated that appellant had been symptomatic since March 15, 2010 after he bent over at work to
pick up an empty plastic tray weighing about 1 to 2 pounds. He reported that since the incident,
appellant was experiencing left-sided neck pain and associated numbness in his right medial
forearm as well as weakness in his hands. Upon physical examination and review of appellant’s
MRI scan, Dr. Reid noted that at C5-6, there was a disc bulge with a left paracentral disc
osteophyte complex which was indenting the thecal sac and causing foraminal stenosis. He
opined that the left-sided neck pain was likely myofacial in nature since the MRI scan showed no
significant abnormalities which could account for appellant’s symptoms and diagnosed
cervicalgia.
In duty status reports dated April 6 to 26, 2010, Dr. Reid reported that on March 15, 2010
appellant was lifting a tray and felt a sharp pain in his left shoulder. He diagnosed a herniated
cervical disc and restricted appellant from working.
In a May 5, 2010 report of termination of disability (Form CA-3), appellant’s supervisor
reported that appellant returned to full duty on May 3, 2010.
By letter dated June 15, 2010, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In a June 25, 2010 letter, appellant stated that on March 15, 2010 he was reaching to lift a
tray and felt a sharp pain in his shoulder, which caused numbness in his left hand and elbow and
2

pain in his neck. He noted that he went to see a physician that same date. After diagnostic
testing was performed, appellant was diagnosed with herniated cervical disc. He reported that he
did not have any similar disabilities or symptoms prior to this injury.
By decision dated July 16, 2010, OWCP denied appellant’s claim on the grounds that the
evidence was insufficient to establish that he sustained an injury because he did not submit any
medical evidence containing a medical diagnosis in connection with the accepted March 15,
2010 employment incident. It noted that the medical evidence submitted contained a diagnosis
of “pain” which is a symptom and not a diagnosed medical condition.2
By letter dated August 12, 2010, appellant requested reconsideration of OWCP’s
decision. He noted that Dr. Reid’s April 6, 2010 report specifically diagnosed him with
cervicalgia and also provided causal relationship when the physician stated that appellant had
been symptomatic since March 15, 2010 after he bent over at work to pick up a tray.
By letter dated August 14, 2010, Linda Bassett, the Office Manager for Quintana Family
Medical, reported that appellant was treated on March 15, 2010 for an injury he sustained while
working at the employing establishment. She resubmitted Dr. Reid’s April 6, 2010 medical
report to support that she was injured when he was at work.
By decision dated September 30, 2010, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and

2

The decision of July 16, 2010 employs a numbered list of “5 basic elements.” Element 3 of the list is titled
“Fact of Injury” and is repeated below: “Establish Fact of Injury, which has both a factual and medical component.
Factually, the injury, accident, or employment factor alleged must have actually occurred. Medically, a medical
condition must be diagnosed in connection with the injury or event.”
OWCP went on to explicitly inform appellant that his claim was denied in the language below:
Specifically, your case is denied because you did not submit any medical evidence containing a
medical diagnosis in connection with the injury and/or event(s). Medical reports from Dr. Reid
has diagnosed your medical condition as left-sided neck pain, numbness of the forearm and medial
two fingers. In addition, diagnostic test results were submitted but a rationalized or probative
opinion was not provided in connection with the May 15, 2010 incident. Findings of pain or
discomfort alone do not satisfy the medical aspect of the fact of injury determination. Pain is
considered to be a symptom not a diagnosis therefore these diagnoses are of no probative value.

3

relevant evidence establishing fact of injury.3 It noted that the medical evidence submitted was a
restatement of medical evidence already on file, irrelevant and repetitious.4
LEGAL PRECEDENT -- ISSUE 1
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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are 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 on a traumatic injury or an occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.8 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
3

In the September 30, 2010 decision, OWCP elaborated in its assertion that appellant’s only diagnosis was pain:
“In the prior decision your claim was denied on the basis that your physician had not provided a
diagnosis in connection with your injury. It is noted that your physician provided diagnosis of
pain and numbness in his report.

4

The Board notes that appellant submitted additional evidence after OWCP rendered its September 30, 2010
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

Michael E. Smith, 50 ECAB 313 (1999).

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

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

4

condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.9
ANALYSIS -- ISSUE 1
OWCP accepted that the March 15, 2010 incident occurred as alleged. It denied
appellant’s claim on the grounds that it lacked sufficient medical evidence to support that the
alleged condition was medically related to the March 15, 2010 employment incident. The Board
finds that appellant did not submit sufficient medical evidence to support that he sustained a
shoulder injury causally related to the March 15, 2010 employment incident.10
In an April 6, 2010 medical report, Dr. Reid reported that appellant had been
symptomatic since March 15, 2010 after he bent over at work to pick up an empty plastic tray.
He opined that the left-sided neck pain was likely myofacial in nature and diagnosed cervicalgia.
In duty status reports dated April 6 to 26, 2010, Dr. Reid diagnosed herniated cervical disc and
restricted appellant from working. In a March 22, 2010 radiology report, Dr. Peyser diagnosed
left-sided foraminal stenosis.
In its July 16, 2010 decision, OWCP found insufficient evidence to establish a firm
medical diagnosis of appellant’s condition, noting that pain is considered to be a symptom and
not a diagnosis. The Board finds, however, that, contrary to OWCP’s finding, the medical
evidence of record establishes a sufficient diagnosis of right cervicalgia, herniated cervical disc
and left-sided foraminal stenosis. OWCP’s decision noted that Dr. Reid diagnosed appellant’s
medical condition as left-sided neck pain, numbness of the forearm and medial two fingers,
finding that appellant did not submit any medical evidence containing a diagnosis. It failed to
address and consider Dr. Reid’s April 6 and 26, 2010 duty status reports which diagnosed
herniated cervical disc, as well as Dr. Peyser’s March 22, 2010 radiology report which diagnosed
left-sided foraminal stenosis. Thus, appellant has established fact of injury, because the medical
evidence is sufficient to establish a diagnosed medical condition.11 Given that appellant has
established a diagnosed condition, the question becomes whether the March 15, 2010 incident
caused his shoulder injury. Thus, appellant must submit rationalized medical evidence to
establish that his diagnosed medical condition is causally related to the accepted March 15, 2010
employment incident.
While Dr. Reid’s report establishes a diagnosis, it is not rationalized as to the issue of
causal relation. In his April 6, 2010 report, Dr. Reid noted that appellant was bending over to
pick up a tray on March 15, 2010 and injured his left shoulder. This medical report is not wellrationalized as Dr. Reid did not provide an adequate explanation of how the incident accepted in
this case caused or contributed to appellant’s herniated cervical disc injury. He merely recounted
9

James Mack, 43 ECAB 321 (1991).

10

See Robert Broome, 55 ECAB 339 (2004).

11

See supra notes 1 and 2. To the extent that the decisions dated July 16 and September 30, 2010 failed to
mention that the medical record before OWCP provided diagnosis other than “pain,” the orders failed to place
appellant fairly on notice of the reasons his claim was denied.

5

the incident as described by appellant and did not determine that appellant’s condition was work
related or offer a rationalized opinion on the issue of causal relationship.12 The reports of
Dr. Reid are of limited probative value on the issue of causal relationship and appellant failed to
meet his burden of proof with the submission of these reports.13
In March 15 and April 9, 2010 progress notes, Dr. Quintana reported that appellant was
lifting a tray at work on that date when he experienced sudden neck pain and pain in his left
shoulder, arm and hand. She diagnosed neck pain, pain in the limb and muscle spasm. In a
March 22, 2010 medical report, Dr. Peyser reported that appellant’s MRI scan showed mild leftsided foraminal stenosis. While Dr. Quintana and Dr. Peyser’s medical records addressed
appellant’s treatment and injury, the physicians failed to state a causal relationship between
appellant’s condition and the March 15, 2010 employment incident. They did not determine that
appellant’s condition was work related and did not offer a rationalized opinion on the issue of
causal relationship.14 The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.15 Without medical reasoning explaining how appellant’s employment
caused his injury, the reports are not sufficient to meet appellant’s burden of proof.16
The remaining medical evidence of record is also insufficient to establish causal
relationship. Appellant submitted duty status reports and medical notes dated March 15 to
April 9, 2010 from Ms. Markowitz. This medical evidence is insufficient to establish a causal
relationship between appellant’s injury and the March 15, 2010 employment incident.
Registered nurses, licensed practical nurses and physicians assistants, they are not physicians as
defined under FECA, their opinions are of no probative value.17
On appeal, appellant contends that he has established a firm medical diagnosis as well as
causal relationship with the medical reports he submitted. While he has established a firm
medical diagnosis for his injury, he has not established that his diagnosed condition is causally
related to the accepted March 15, 2010 employment incident. Appellant’s honest belief that
work caused his medical problem is not in question. But that belief, however, sincerely held,
does not constitute the medical evidence necessary to establish causal relationship. In the instant
case, the record is without rationalized medical evidence establishing that the diagnosed medical
condition is causally related to the accepted March 15, 2010 employment incident. Thus,
appellant has failed to establish his burden of proof.
12

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
13

Deborah L. Beatty, 54 ECAB 340 (2003).

14

Supra note 11.

15

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

C.B., Docket No. 08-1583 (issued December 9, 2008).

17

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.

6

Evidence submitted by appellant after the final decision cannot be considered by the
Board. As previously noted, the Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its decision.18 Appellant may submit additional evidence,
together with a written request for reconsideration, to OWCP within one year of the Board’s
merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
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.19 Section 10.608(b) of OWCP regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.20
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
In his August 12, 2010 narrative statement, appellant reported that Dr. Reid diagnosed
him with cervicalgia and addressed causal relationship when the physician stated that appellant
had been symptomatic since March 15, 2010 when he bent over at work to pick up a tray. In
support of his statement, appellant resubmitted Dr. Reid’s April 6, 2010 medical report. In an
August 14, 2010 letter, Ms. Bassett, Office Manager for Quintana Family Medical, reported that
appellant was treated on March 15, 2010 for an injury he sustained at work.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his August 12, 2010 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Appellant’s argument was that his injury was employment-related and he
referenced the medical reports provided by Dr. Reid and Quintana. The underlying issue in this
case was whether his injury was causally related to the accepted March 15, 2010 employment
incident. Although it is appellant’s belief that he has been injured, this is a medical issue which
must be addressed by relevant medical evidence.21 While the letter from Ms. Bassett is new
evidence and has some connection to appellant’s employment, it is not relevant to the issue for
18

20 C.F.R. § 501.2(c)(1).

19

D.K., 59 ECAB 141 (2007).

20

K.H., 59 ECAB 495 (2008).

21

See Bobbie F. Cowart, 55 ECAB 746 (2004).

7

which OWCP denied appellant’s claim as it does not include a physician’s rationalized opinion
on the issue of whether there is a causal relationship between appellant’s injury and the
March 15, 2010 incident. Further, Dr. Reid’s April 6, 2010 report was already considered by
OWCP in its July 16, 2010 decision and is not new evidence. A claimant may be entitled to a
merit review by submitting new and relevant evidence, but appellant did not submit any new and
relevant medical evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on March 15, 2010 in the performance of duty. OWCP properly
denied his request for reconsideration without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated September 30 and July 16, 2010 are affirmed, as modified.
Issued: August 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 08-680
Issued: September 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 9, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 28, 2007 merit decision denying his claim for a work-related
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant filed a timely claim.
FACTUAL HISTORY
On March 15, 2004 appellant, then a 58-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained a work-related emotional condition. He
claimed that the employing establishment placed him under the supervision of an employee who
assaulted him, prevented him from using the employee assistance program and denied him the
right to file for disability after he was terminated from the employing establishment. Appellant
asserted that he was verbally and physically assaulted by several employees. He stated that he

first became aware that his claimed condition was caused or aggravated by his employment on
April 19, 1990.1
On April 12, 2004 the Office requested that appellant submit additional factual and
medical information in support of his claim. In several statements produced in March 2004,
appellant indicated that he knew as early as August 27, 1990 that he was disabled by a workrelated emotional condition. He alleged that a coworker threatened to kill him and that
supervisors repeatedly subjected him to harassment and discrimination by threatening to fire
him. Appellant claimed that a coworker assaulted him on June 8, 1996. In a May 22, 1990
report, Dr. James H. Phillips, an attending Board-certified psychiatrist, stated that appellant
reported that he was undergoing a great deal of emotional stress and noted that he was “either
experiencing a great deal of strain on his job from people who appear to dislike him and want to
get rid of him or he is a paranoid man.” He stated, “[I]t is more likely that he has developed
some relationships within his job that result in others not wanting him around, however, stresses
incurred under these circumstances are so great that I am recommending [appellant] not return to
work at this time.”
In an August 27, 1990 report, Dr. Phillips stated that he first saw appellant on April 19,
1990 at which time he was found to be suffering with an “adjustment disorder of adult life with
severe anxiety and possible paranoia.” He noted that this condition was a “direct result of the
situation on your job.” Dr. Phillips indicated that appellant failed to respond to treatment and
became depressed. He noted that during therapy sessions appellant discussed situations which
“sounded paranoid” but that he was able to produce documents which verified his treatment by
supervisors and coworkers.
In a September 21, 2004 decision, the Office denied appellant’s emotional condition
claim on the grounds that he did not establish any compensable employment factors.
Appellant submitted an April 19, 1990 report in which Dr. Phillips indicated that he
presented himself for evaluation “stating his present difficulties center around his job.”
Dr. Phillips noted that appellant asserted that he did his job so well that he “caught heat” from
supervisors that wanted to get him off the job. Appellant claimed that supervisors “set him up”
to be assaulted by a man who worked near the employing establishment. Dr. Phillips indicated
that appellant asserted that recent conflicts with supervisors led him to be removed from his
usual work duties and that supervisors did nothing after a coworker threatened him. He
diagnosed “adjustment disorder of adult life with anxiety and possible paranoia.”

1

Appellant also indicated that he first became aware of his claimed condition on August 27, 1990. His supervisor
indicated on the Form CA-2 that appellant was terminated for cause from the employing establishment on
July 18, 1996. In a May 11, 2004 statement, another supervisor stated that appellant was terminated from the
employing establishment on July 18, 1996 and noted that his actual separation date from the employing
establishment was September 15, 1997. The record contains a February 1, 1999 document in which an official from
the retirement processing branch of the employing establishment stated that appellant was “removed” on
September 15, 1997. In September 1999, the Merit Systems Review Board upheld the employing establishment’s
termination of appellant for striking a coworker on June 8, 1996.

2

In a June 5, 1990 report, Dr. Phillips stated that he had a lengthy therapy session with
appellant and discussed the fact that he continued to be “obsessed with the way he has been
treated on his job.” He noted, “[Appellant] indicates that he is going to be on workman’s
compensation because the stress that he has experienced on his job caused him to be unable to
function.”
Appellant requested a hearing before an Office hearing representative. At the
October 25, 2005 hearing, he asserted that he sustained stress because the employing
establishment wrongly threatened to fire him due to a June 8, 1996 conflict with a coworker. In
a January 17, 2006 decision, the Office hearing representative affirmed the Office’s April 12,
2004 decision as modified to reflect that appellant’s emotional condition claim was denied
because it was untimely filed. The Office hearing representative found that September 15, 1997,
appellant’s last day of work, was his date of last possible exposure to employment factors.
Appellant did not file his claim until March 15, 2004, well over three years after his date of last
possible exposure, and his immediate supervisor did not have actual knowledge of the claimed
on-the-job injury within 30 days.
Appellant submitted statements in which he provided additional details of his claimed
work stressors and submitted numerous documents that were already in the record. In a June 28,
2007 decision, the Office affirmed its January 17, 2006 decision.
LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act2 has
the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death.6 Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
(1) The immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
2

5 U.S.C. §§ 8101-8193.

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

Kenneth W. Grant, 39 ECAB 208 (1987); James E. Lynch, 32 ECAB 216 (1980); Emiliana de Guzman (Mother of
Elpedio Mercado), 4 ECAB 357 (1951); see 5 U.S.C. § 8101(1).
5

Paul S. Devlin, 39 ECAB 715 (1988); Emmet L. Pickens, 33 ECAB 1807 (1982); Kathryn A. O’Donnell, 7 ECAB
227 (1954).
6

5 U.S.C. § 8122(a).

3

(2) written notice of injury or death as specified in section 8119 was given within
30 days.7
Section 8122(b) provides that, in a case of latent disability, the time for filing a claim
does not begin to run until the employee has a compensable disability and is aware, or by
exercise of reasonable diligence should have been aware, of the causal relationship of the
compensable disability to his employment. In such a case, the time for giving notice of injury
begins to run when the employee is aware, or by the exercise of reasonable diligence should have
been aware, that his condition is causally related to his employment, whether or not there is a
compensable disability.8 The Board has held that the applicable statute of limitations
commences to run although the employee does not know the precise nature of the impairment.9
If an employee continues to be exposed to injurious working conditions after such awareness, the
time limitation begins to run on the last date of this exposure.10
ANALYSIS
Appellant claimed that he sustained an emotional condition due to various incidents
including being subjected to harassment and discrimination by supervisors and coworkers. The
Office denied his emotional condition claim on the grounds that it was untimely filed. The
Board finds that the Office properly denied appellant’s claim on the basis that he did not file a
timely claim for an employment-related emotional condition.
The evidence establishes that appellant was aware, or by the exercise of reasonable
diligence should have been aware, of the causal relationship between his employment and the
claimed emotional condition as early as April 19, 1990. In his March 15, 2004 claim form,
appellant stated that he first became aware that his claimed emotional condition was caused or
aggravated by his employment on April 19, 1990.11 Moreover, the medical evidence supports a
finding that appellant was aware or should have been aware of the causal relationship between
his employment and the claimed emotional condition as early as April 19, 1990. In an April 19,
1990 report, Dr. Phillips, an attending Board-certified psychiatrist, indicated that appellant
7

Section 8119 provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly
stamped and addressed; be in writing; state the name and address of the employee; state the year, month, day, and
hour when and the particular locality where the injury or death occurred; state the cause and nature of the injury, or
in the case of death, the employment factors believed to be the cause; and be signed by and contain the address of
the individual giving the notice.
8

5 U.S.C. § 8122(b).

9

Delmont L. Thompson, 51 ECAB 155 (1999).

10

Charlene B. Fenton, 36 ECAB 151, 157 (1984); Gladys E. Olney, 32 ECAB 1643, 1645 (1982).

11

Appellant also indicated on the form that he first became aware of his claimed condition on August 27, 1990,
but it is unclear why he indicated he was aware of his claimed condition on a date after he became aware that his
claimed condition was related to his employment. As noted above, the applicable statute of limitations commences
to run although the employee does not know the precise nature of the impairment. See supra note 9 and
accompanying text.

4

presented himself for evaluation “stating his present difficulties center around his job.” He noted
that appellant asserted that he was subjected to harassment and discrimination by supervisors,
that recent conflicts with supervisors led him to be removed from his usual work duties and that
he was subjected to assault or threat of assault at work. Dr. Philips diagnosed adjustment
disorder of adult life with anxiety and possible paranoia.12
Appellant worked at the employing establishment as late as September 15, 1997 and he
claimed that he was subjected to harassment and discrimination up until the time he left the
employing establishment.13 Therefore, his last possible exposure to the implicated employment
factors occurred no later than September 15, 1997. As noted above, if an employee continues to
be exposed to injurious working conditions after such awareness, the time limitation begins to
run on the last date of this exposure.14 Therefore, the time limitation in appellant’s case began to
run no later than September 15, 1997. Since appellant did not file a claim until March 15, 2004,
his claim was not filed within the three-year period of limitation.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. He has not made any claim that he has satisfied either of these
provisions, nor does the record support a finding that he has satisfied either of them.15
CONCLUSION
The Board finds that appellant did not timely file a claim.

12

In an August 27, 1990 report, Dr. Phillips stated that he first saw appellant on April 19, 1990 at which time he
was found to be suffering with an adjustment disorder of adult life with severe anxiety and possible paranoia.
Dr. Phillips noted that this condition was a “direct result of the situation on your job.”
13

Some of the documents of record indicate that appellant was terminated from the employing establishment
effective July 18, 1996 but it appears that he worked for the employing establishment as late as September 15, 1997.
14

See supra note 10 and accompanying text.

15

There is no indication in the record that appellant provided a statement to his immediate superior such that he
satisfied the provisions of sections 8119 and 8122(a) of the Act. See supra note 7 and accompanying text.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
June 28, 2007 decision is affirmed.
Issued: September 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Danville, CA, Employer
__________________________________________

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

Docket No. 13-1372
Issued: December 16, 2013

Case Submitted on the Record

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

JURISDICTION
On May 20, 2013 appellant filed a timely appeal of the April 11 and May 9, 2013
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her claims
for compensation. 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was partially
disabled for intermittent periods from January 22 to March 8, 2013 causally related to her
accepted employment condition.
FACTUAL HISTORY
On February 10, 1997 appellant then a 35-year-old mail carrier, filed an occupational
disease claim alleging pain and numbness in both hands while casing and delivering her mail
1

5 U.S.C. §§ 8101-8193.

route. OWCP accepted the claim for bilateral carpal tunnel syndrome and authorized a left
carpal tunnel release which was performed on January 22, 1998. A right carpal tunnel release
and right ulnar neurolysis was performed on March 20, 1998. Appellant stopped work on
February 11, 1997 and worked intermittently thereafter.
Appellant was treated by Dr. Jack B. Drori, a Board-certified orthopedic surgeon, from
February 10 to March 10, 1997, for numbness, tingling and pain in both hands. Dr. Drori noted
that a March 4, 1997 electromyogram (EMG) revealed mild bilateral carpal tunnel syndrome.
He opined that appellant’s repetitive job duties caused and aggravated her symptoms of carpal
tunnel syndrome. From May 16 to June 11, 1997, appellant was treated by Dr. Edward A.
Stokel, a Board-certified orthopedic surgeon, for bilateral carpal tunnel syndrome and bilateral
regional forearm pain. On January 22 and March 20, 1998 Dr. Kendrick Lee, a Board-certified
orthopedic surgeon, performed the above-noted left and right carpal tunnel releases.
On January 28, 2001 OWCP granted appellant a schedule award for 20 percent
impairment of the right arm and also for 20 percent impairment of the left arm. The period of the
award was from November 15, 2001 to April 7, 2003.
On October 6, 2010 Dr. Lee noted that appellant was unable to perform her usual job but
could work eight hours a day at limited duty with permanent restrictions. He noted that appellant
reached maximum medical improvement. In a February 16, 2011 duty status report, Dr. Lee
diagnosed carpal tunnel syndrome and cubital tunnel syndrome and advised that appellant could
work eight hours per day subject to restrictions.
In 2013 appellant submitted CA-7 forms, claims for compensation, asserting that she was
partially disabled from January 22 to 24, 2013 for 11.99 hours; from January 28 to February 8,
2013 for 41 hours; and from February 9 to 22, 2013 for 16.08 hours. In a Form CA-7a, time
analysis form and OWCP time loss worksheets, the employing establishment confirmed the
hours of leave without pay.
On February 6, 2013 Dr. Lee noted that appellant was a mail carrier and had a date of
injury of July 13, 2004. Appellant complained of bilateral hand pain, swelling at the radial hand
and thumb joint which was worse when fingering mail. Dr. Lee advised that she was
postbilateral ulnar nerve transposition and left revision surgery, postbilateral carpal tunnel
surgery and left lateral epicondylitis. He noted that appellant continued working at modified
duty and had requested an increase in work hours to drive up to six hours a day. On
examination, sensation was normal to light stroke and there was normal elbow, forearms, wrist
and finger ranges of motion. There was no tenderness of the right or left thumb, capillary refill
was normal, unchanged bilateral medial elbow scars and bilateral wrist flexors crease scars
consistent with prior surgery, no atrophy, edema, discoloration or wounds with mildly positive
right and negative left Phalen’s and Tinel’s signs. Dr. Lee diagnosed bilateral thumb
carpometacarpal joint osteoarthrosis, unrelated to the current claim, bilateral carpal tunnel
syndrome, left side resolved, right side improved postsurgery, bilateral ulnar neuropathy at
elbows, right and left resolved postsurgery and bilateral lateral epicondylitis, stable. He opined
that appellant had stable on and off symptoms of left lateral epicondylitis and stable right
residual carpal tunnel syndrome. Dr. Lee noted new symptoms, signs and x-rays confirming
bilateral thumb carpometacarpal joint osteoarthritis; however, the new symptoms were not part

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of the current claim. He opined that appellant remained at maximum medical improvement for
some years and could continue modified duty, long-term permanent restrictions and increased
her driving to six hours a day.
In letters dated February 11 to March 5, 2013, OWCP requested that appellant submit
additional information with regard to her claim for compensation. It requested that she submit
medical evidence establishing that she was disabled for the hours claimed due to the accepted
condition.
OWCP further noted that appellant was diagnosed with bilateral thumb
carpometacarpal joint osteoarthritis, a condition not accepted as work related. If appellant
believed the condition was work related she could submit a new Form CA-2, occupational
disease claim.
On March 12, 2013 appellant submitted a Form CA-7, claim for compensation for leave
without pay, asserting that she was partially disabled from February 23 to March 8, 2013 for
19.01 hours. In a Form CA-7a, time analysis form and OWCP time loss worksheets, the
employing establishment confirmed the hours of leave without pay. In a letter dated March 19,
2013, OWCP requested that appellant submit additional information.
In a decision dated April 11, 2013, OWCP denied appellant’s claim for compensation for
partial disability from January 22 to 24, 2013 for 11.99 hours; from January 28 to February 8,
2013 for 41 hours; and from February 9 to 22, 2013 for 16.08 hours. It advised that her claim
was accepted for bilateral carpal tunnel syndrome and was combined with file number
xxxxxx116 which was accepted for left lateral epicondylitis and left lesion of the ulnar nerve.
OWCP noted that the February 6, 2013 report of Dr. Lee diagnosed bilateral thumb
carpometacarpal joint osteoarthritis which the physician noted was unrelated to her accepted
claims.
In a letter dated April 6, 2013, appellant noted that her permanent restrictions were the
result of her carpal tunnel surgery in 1997. For several years the employing establishment was
able to provide sufficient work that fit her medical restrictions for an eight-hour workday.
Appellant asserted that the employing establishment did not have sufficient work to perform for
an eight-hour workday and that she worked six hours a day. She submitted reports from Dr. Lee
dated October 6, 2010 and February 6, 2013, previously of record.
In a decision dated May 9, 2013, OWCP denied appellant’s claim for compensation. It
found that the medical evidence was not sufficient to establish her partial disability for the period
February 23 to March 8, 2013 for 19.01 hours.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.2 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.3 The issue of
2

See Fereidoon Kharabi, 52 ECAB 291 (2001).

3

Id.

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whether a particular injury causes disability for work must be resolved by competent medical
evidence.4 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.5
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.6
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome, left lateral
epicondylitis and left elbow cubital tunnel syndrome. It authorized a left carpal tunnel release
which was performed on January 22, 1998 and a right carpal tunnel release which was performed
on March 20, 1998. A left ulnar neurolysis with anterior submuscular transposition was
performed on October 24, 2002. In an October 6, 2010 work capacity evaluation, Dr. Lee noted
that appellant could work eight hours per day limited duty within restrictions.
The Board finds that the medical evidence is insufficient to establish her partial disability
from January 22 to 24, 2013 for 11.99 hours; from January 28 to February 8, 2013 for 41 hours;
from February 9 to 22, 2013 for 16.08 hours; and from February 23 to March 8, 2013 for 19.01
hours caused or aggravated by the accepted conditions.
In a February 6, 2013 report, Dr. Lee noted that appellant was a mail carrier and
complained of bilateral hand pain, swelling at the radial hand and thumb joint which was worse
when fingering mail. Appellant was postbilateral ulnar nerve transposition and left revision
surgery, postbilateral carpal tunnel surgery and left lateral epicondylitis. Dr. Lee noted that
appellant continued to work modified duty and had requested an increase in work hours for
driving up to six hours a day which he granted. The findings on examination included normal
sensation in the hands and normal ranges of motion of the elbows, forearms, wrists and fingers.
Dr. Lee diagnosed bilateral thumb carpometacarpal joint osteoarthrosis, unrelated to current
claim; bilateral carpal tunnel syndrome, left side resolved and right side improved postsurgery;
bilateral ulnar neuropathy at elbows, right and left side resolved postsurgery; and stable bilateral
lateral epicondylitis. Appellant had a stable left lateral epicondylitis and right residual carpal
tunnel syndrome. Dr. Lee stated that the new symptoms of bilateral thumb carpometacarpal joint
osteoarthritis were not part of the current claim. He advised that appellant could continue
modified duty. Dr. Lee did not support that appellant was partially disabled due to her accepted
conditions for the intermittent periods claimed from January 22 to March 8, 2013. He did not
4

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

5

C.S., Docket No. 08-2218 (issued August 7, 2009).

6

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

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explain how appellant’s modified duties aggravated her accepted conditions or exceeded her
work restrictions for the claimed period. Dr. Lee attributed appellant’s symptoms to the newly
diagnosed bilateral carpometacarpal joint osteoarthritis, which is not accepted as work related.
Appellant’s burden of proof includes submitting rationalized medical evidence which supports a
causal relationship between the alleged disabling condition and the accepted injury. She failed to
meet 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 failed to establish that her disability for the period
beginning January 22 to March 8, 2013 is causally related to the accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 9 and April 11, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, New York, NY, Employer
__________________________________________

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

Docket No. 08-1063
Issued: October 6, 2008

Case Submitted on the Record

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

JURISDICTION
On February 28, 2008 appellant filed a timely appeal from a November 27, 2007 decision
of the Office of Workers’ Compensation Programs, denying her claim for an injury on
October 31, 2005. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on October 31, 2005 while in the
performance of duty.
FACTUAL HISTORY
On November 7, 2005 appellant, then a 53-year-old program analyst, filed a traumatic
injury claim alleging that on October 31, 2005 she sustained a heart condition when she was
trapped in an elevator at work for approximately 50 minutes. She indicated that the elevator
stopped at the 6th floor and a coworker exited. The elevator then rose very fast to the 41st floor

but the door did not open. It then descended very fast. Appellant pushed the alarm button and
the elevator went up and down again. She began to hyperventilate and her asthma condition was
elevated. An incident report indicates that at 11:38 a.m. building management received a report
that the elevator was stuck. At 11:50 a.m. a nurse contacted appellant via the elevator telephone.
The fire department was notified at 12:02 p.m. and arrived at 12:07 p.m. The firemen removed
appellant under her own power by lowering a ladder into the elevator through the top hatch.
Appellant remained at the building until 1:25 p.m. when she was transported to a hospital by
ambulance.1
On November 30, 2005 the Office asked appellant to submit additional evidence within
30 days, including a medical report containing a history and diagnosis of her condition and
medical rationale explaining how the condition was causally related to the October 31, 2005
incident.
On December 13, 2005 Dr. Jeffrey B. Doskow, a Board-certified internist and
cardiologist, stated that appellant had a stress test that was positive for chest pain and a
hypertensive response to exercise. The stress was also positive for inferoseptal ischemia which
could be consistent with coronary artery disease. In a December 20, 2005 disability certificate,
Dr. Doskow diagnosed hypertension, chest pain and an abnormal nuclear study.
By decision dated January 9, 2006, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that she sustained an employment-related injury on
October 31, 2005 when she was trapped in an elevator.
Appellant requested reconsideration and submitted additional evidence. The fire
department report stated that she was stuck in an elevator for approximately 45 minutes and was
hysterical and crying. Appellant was extracted from the elevator but there was a delay in
transporting her to the hospital. The reports states, “[Her] care extended due to calming [her]
[and] traveling companion….2 [Appellant] was extremely agitated and did not want to move.
[Her medical history continued]: PTSD [post-traumatic stress disorder] since 9/ 11.” The
hospital emergency room record, much of which is illegible, indicated that appellant reported
being stuck in the elevator alone for about 45 minutes. After testing, which included an
1

This is the second appeal in this case. See Docket No. 06-1362 (issued October 27, 2006). By order dated
October 27, 2006, the Board dismissed the appeal at appellant’s request so that she could submit additional evidence
to the Office.
2

In its November 27, 2007 decision, the Office interpreted the mention of a “traveling companion” in the fire
department report as showing that someone else was in the elevator with appellant which conflicted with a history in
a medical report from Dr. Scott Sigmon that she was alone. However, there is no evidence of record that someone
else was trapped with appellant in the elevator. The fire department indicated that only appellant was extracted from
the elevator. The reference to a “traveling companion” could have other interpretations such as this individual being
a coworker who was going to accompany appellant in the ambulance to the hospital. In fact, in appellant’s initial
statement, she indicated that a coworker had just exited the elevator before it began malfunctioning. In its
November 27, 2007 decision, the Office also found that a note in the fire department report that “Bystanders [state]
[patient] was stuck in elevator for ½ hour” conflicted with the history in Dr. Sigmon’s medical report that she was
trapped for about 40 minutes. However, there is no evidence that the time estimate of bystanders is more accurate
than appellant’s accounting of the events. The comments in the November 27, 2007 decision about the fire
department report are not sufficient to establish an inaccurate history in Dr. Sigmon’s report.

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electrocardiogram (ECG), appellant reported feeling much better but still had a little chest
pressure. The ECG test was reported as abnormal but with an “unconfirmed diagnosis.” The
diagnosis was chest pain and anxiety. Appellant declined to stay at the hospital, indicating that
she preferred a hospital near her home.
In a December 20, 2005 report, Dr. Doskow stated that a nuclear stress performed on
December 13, 2005 due to her chest pain revealed the possibility of apical wall myocardial
ischemia. Appellant was experiencing chest pain on December 20, 2005 but her blood pressure
was good. Dr. Doskow diagnosed hypertension, a history of anxiety secondary to the events of
September 11, 2001, a recent entrapment in an elevator for more than one hour and a borderline
positive nuclear scan. Disability certificates from Dr. Doskow indicated that appellant was
totally disabled from January 4 to February 5, 2006 due to hypertension, an abnormal nuclear
study and status post a cardiac catheterization with complications. In a January 10, 2006 report,
he stated that appellant’s catheterization revealed no evidence of significant epicardial disease.
By decision dated May 5, 2006, the Office denied appellant’s request for reconsideration
on the grounds that the evidence was not sufficient to warrant further merit review.
Appellant requested reconsideration and submitted additional evidence.
In a narrative report dated February 14, 2006 and a June 6, 2006 addendum, Dr. Scott B.
Sigmon, a licensed clinical psychologist, stated that he had treated appellant for PTSD caused by
being near the World Trade Center building on September 11, 2001. An assistant pastor at her
church died in that attack. Dr. Sigmon stated that appellant was recovering well psychologically
from the September 11, 2001 trauma until she had a significant setback on October 31, 2005
when she was stuck for approximately 40 minutes in an elevator by herself at work. Firemen
released her from the elevator by breaking through a wall shaft and taking her via a ladder to a
hole in the wall that they created. Appellant was taken by ambulance to a nearby hospital and
was subsequently treated “for cardiac problems and hypertension (for the first time) by a
cardiologist and is on medicines for same.” Dr. Sigmon stated that she had evidenced elevated
levels of stress, anxiety, depression and sleep problems on visits to him since October 31, 2005.
On June 6, 2006 he indicated that she would be psychologically disabled for at least six more
months.
In reports dated February 28 and June 13, 2006, Dr. David Corwin, a Board-certified
psychiatrist, stated that appellant had been under his care since November 2002 for depression,
PTSD and an anxiety disorder caused by the September 11, 2001 attack on the World Trade
Center which was located adjacent to her building. On October 31, 2005 appellant was trapped
in an elevator that fell several floors causing an intense panic response and extremely elevated
hypertension. She had an exacerbation of her depression and panic symptoms and was unable to
work for 10 weeks. Appellant was being treated monthly with psychotherapy and medication
with a fair prognosis. Dr. Corwin stated that, “The extent of disability with respect to her work
is that she has periods of intense anxiety and depression during which she cannot work.”
In a June 29, 2006 report, Dr. Richard J. Solomon, an internist, diagnosed iron deficiency
anemia, hypertension, hypercholesterolemia (excessive cholesterol in the blood), Type II
diabetes, back pain, chest pain and anxiety (panic disorder) and depression. He indicated that

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appellant’s chest pain was precipitated by the October 31, 2005 incident when she was stuck in
the elevator. Appellant’s anxiety and depression were severely exacerbated by witnessing the
events of the September 11, 2001 World Trade Center attack and being trapped in an elevator.
She was taking multiple medications and receiving psychotherapy.
Appellant requested reconsideration. She described the October 31, 2005 elevator
incident and the history of her compensation claim.
By decision dated November 27, 2007, the Office denied modification of the January 9,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden to establish the essential elements of her claim including the fact that the individual is an
employee of the United States within the meaning of the Act, that the claim was timely filed, that
an injury was sustained in the performance of duty as alleged and that any disability or medical
condition for which compensation is claimed is causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place and in the manner alleged.5 Second, the employee must
submit medical evidence to establish that the employment incident caused a personal injury.6 An
employee may establish that the employment incident occurred as alleged but fail to show that
her disability or condition relates to the employment incident.
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.7
3

5 U.S.C. §§ 8101-8193.

4

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

5

John J. Carlone, 41 ECAB 354 (1989).

6

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

7

Gary J. Watling, 52 ECAB 278 (2001); id.

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ANALYSIS
The Office accepted that appellant actually experienced the claimed incident on
October 31, 2005, but found that the medical evidence did not establish that she sustained an
injury causally related to the incident.
Dr. Sigmon stated that he had treated appellant for PTSD caused by working in a building
close to the World Trade Center building on September 11, 2001. He stated that appellant was
recovering well psychologically from the September 11, 2001 trauma until she had a significant
setback on October 31, 2005 when she was stuck for approximately 40 minutes alone in an
elevator at work. Firemen released her from the elevator by breaking through a wall shaft and
taking her via a ladder to the hole in the wall that they created. Appellant was taken by
ambulance to a nearby hospital and was subsequently treated for cardiac problems and
hypertension by a cardiologist.8 Dr. Sigmon stated that she had elevated levels of stress, anxiety,
depression and sleep problems on visits to him since October 31, 2005. On June 6, 2006 he
indicated that she would be psychologically disabled for at least six more months. Dr. Sigmon
stated that appellant had a significant setback, related to her preexisting PTSD sustained on
September 11, 2001, when she was trapped in the elevator on October 31, 2005. He did not,
however, make a specific diagnosis concerning the October 31, 2005 employment incident.
Dr. Corwin stated that appellant had been under his care since November 2002 for
depression, PTSD and an anxiety disorder caused by the September 11, 2001 attack on the World
Trade Center which was located adjacent to her building. On October 31, 2005 appellant was
trapped in an elevator that fell several floors causing an intense panic response and extremely
elevated hypertension. She had an exacerbation of her depression and panic symptoms and was
unable to work for 10 weeks. Dr. Corwin stated that appellant experienced periods of intense
anxiety and depression during which she could not work. But, did not provide sufficient medical
rationale explaining the causal relationship between her conditions and the October 31, 2005
employment incident.
Dr. Solomon indicated that appellant had chest pain that was precipitated by the
October 31, 2005 incident when she was stuck in the elevator. He stated that her anxiety and
depression were severely exacerbated by witnessing the events of the September 11, 2001 World
Trade Center attack and being trapped in an elevator. Appellant was taking multiple medications
and receiving psychotherapy. Dr. Solomon did not provide a specific cardiac diagnosis for her
chest pain. Additionally, he did not provide sufficient medical rationale explaining the causal
relationship between the October 31, 2005 employment incident and appellant’s preexisting
anxiety and depression.
While several physicians suggest the possibility that appellant suffered an injury on
October 31, 2005, a medical possibility does not meet appellant’s burden of proof. Appellant has
not proved her claim.
8

As noted, Dr. Doskow diagnosed hypertension, a history of anxiety secondary to the events of September 11,
2001, a borderline positive nuclear scan and he noted appellant’s October 31, 2005 entrapment in an elevator. His
disability certificates indicated that she was totally disabled from January 4 to February 5, 2006 due to hypertension,
an abnormal nuclear study and status post a cardiac catheterization with complications.

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CONCLUSION
The Board finds that appellant did not establish that she sustained an employment-related
traumatic injury. The medical evidence is insufficient.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 27, 2007 is affirmed.
Issued: October 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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