United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, DALLAS
PROCESSING & DISTRIBUTION CENTER,
Dallas, TX, Employer
__________________________________________

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

Docket No. 15-1743
Issued: September 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 18, 2015 appellant filed a timely appeal of a July 27, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the Board has jurisdiction
to consider the merits of the case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition causally related to factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

Following OWCP’s July 27, 2015 decision appellant submitted new evidence. As OWCP did not consider this
evidence in reaching a final decision, the Board may not consider it for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On November 26, 2014 appellant, then a 44-year-old manager, filed a traumatic injury
claim (Form CA-1) alleging that he developed post-traumatic stress disorder (PTSD) due to
factors of his federal employment. He attributed his condition to a hostile work environment and
disparity of treatment. Appellant stopped work on November 22, 2014.
In support of his claim, appellant submitted a report dated January 6, 2015 from
Dr. Adami Gabriel, a licensed clinical psychologist, diagnosing PTSD, major depressive disorder
and severe alcohol use disorder. Dr. Gabriel noted that appellant attributed his condition to
witnessing a severe accident at work in November 2014 when a dock worker was caught
between a truck and the dock severing his spine. He also reported that appellant attributed his
condition to being asked to leave a November 22, 2014 meeting after yelling an expletive at a
female coworker, disagreement with management policies, and management’s lack of receptivity
to his feedback.
The employing establishment investigative service completed a report and interviewed
witnesses regarding the allegation that appellant filed his Form CA-1 to avoid disciplinary action
for unprofessional behavior. It asked that his claim be denied.
P.W., the lead manager of distributions operations, and appellant’s direct supervisor,
completed an investigatory interview on December 15, 2014. She noted that appellant used sick
leave for most of October 2014, but did not contact management during this period. P.W.
indicated that he used the automated system to request leave. F.E., the senior manager of
distribution operations, sent an absence inquiry letter to appellant on November 6, 2014 as is
standard procedure when an employee does not show up for work for an extended period of time.
Appellant requested a meeting with both P.W. and F.E. on November 22, 2014. During this
meeting, he tossed the inquiry letter on F.E.’s desk and started yelling. Appellant allegedly was
angry and standing over P.W.’s desk. Appellant wanted to know if he worked for F.E. or P.W.
P.W. alleged that appellant stated that, if he worked for F.E., he was not going to report to P.W.
anymore. Appellant allegedly stated, “I’m not going to do a damn thing for you. I don’t work
for you.” F.E. informed appellant that he worked for both P.W. and for her. She then stated that
the meeting was over. While he was leaving the office, appellant allegedly stated, “I’m through
with you whores.” F.E. asked if he had just called her a whore, and appellant confirmed that he
had. She then directed appellant to leave the building. Appellant asked if he was on
administrative leave, and F.E. told him he was off the clock. As he left he referred to F.E. and
P.W. as, “f------ bitches.” P.W. stated that she had replaced appellant as lead Manager of
Distribution Operations (MDO), that he was upset about this change, and that she was unaware
of any traumatic event involving appellant at the employing establishment.
On January 15, 2015 appellant was interviewed by the employing establishment
investigative service and stated that problems began when F.E. returned to work after breaking
her foot, as he had been transferred to replace her during her absence. Appellant confirmed that
he had requested a meeting with F.E. and P.W. on November 22, 2014 after receiving an absence
inquiry letter. He was upset at receiving the absence inquiry letter from a supervisor as he was a
manager. Appellant stated that he did not want other supervisors knowing his business. He
confronted F.E. about the letter and was angry. Appellant alleged that F.E. could have called
him on his employing establishment cell phone and that he had received disparate treatment as
2

many other employees were not contacted through official letters. He admitted that as he left the
meeting he stated “you whores are crazy.” He explained that F.E. asked if he had called her a
whore and he confirmed that he had. She then instructed him that he was “off the clock.”
Appellant denied calling F.E. and P.W. “f------ bitches.” He alleged that he became depressed in
May 2014 and that he did not get along with F.E. and P.W. as he did not like their management
style.
Appellant reported that on June 9, 2014 he left a management meeting after a heated
conversation he initiated regarding problems at the employing establishment. He admitted that
he abruptly stood and stated, “I’m not listening to this [s—t] anymore” and left the meeting.
Appellant also reported that a truck driver was crushed in an on-the-job accident in
November 2014. He contacted the Employee Assistance Program (EAP) to obtain help for the
other employees who had witnessed this event. Appellant stated that he did not see the accident,
but reached out to the driver’s wife and visited in the hospital.
E.J., a manager, completed an investigatory interview on December 15, 2014 and detailed
the events of the November 22, 2014 meeting he witnessed with appellant, F.E. and P.W. He
alleged that the meeting became confrontational and loud very quickly. Appellant asserted that
F.E. should have called him, and she informed him that a letter was standard procedure. E.J.
heard appellant refer to F.E. and P.W. as whores and heard F.E. direct appellant to leave the
building as he was off the clock. As he left the office, appellant stated, “F--- you bitches.”
Appellant had received a proposed letter of warning from the employing establishment
due to his behavior in a June 9, 2014 meeting. The employing establishment based this proposed
discipline on appellant’s unacceptable conduct in a June 9, 2014 meeting in which appellant
allegedly became agitated during a meeting, raised his voice, and stormed out. Due to that, an
investigation was conducted. During the investigative interview, appellant alleged that he had
been provoked and singled out by executive managers.
On November 22, 2014 the employing establishment placed appellant into an off-duty
status without pay effective that date pending an investigation. The employing establishment
stated that during a meeting on November 22, 2014 appellant’s behavior was threatening and his
conduct was unprofessional.
In a letter dated February 11, 2015, OWCP requested additional factual and medical
evidence from appellant in support of his traumatic injury claim. It asked that he complete a
questionnaire and afforded him 30 days to respond.
Appellant submitted a report dated March 12, 2015 from Dr. Gabriel, which noted that
appellant reported having witnessed a severe accident during which a dock worker was caught
between a truck and the dock, severing his spine. He further described the meetings appellant
had with his supervisors. Dr. Gabriel diagnosed PTSD, major depressive disorder, and severe
alcohol use disorder. He concluded that appellant’s work caused the diagnosed conditions based
on the temporal relationship.
By decision dated April 7, 2015, OWCP denied appellant’s claim as he had not
substantiated a compensable factor of employment as causing or contributing to his diagnosed
emotional condition.

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Appellant requested reconsideration on April 28, 2015. He included a statement alleging
severe stress and harassment from upper management at the employing establishment. Appellant
noted that he had requested a downgrade to a lower level management position, but was denied.
He described a mandatory meeting which management asserted would have no subject off limits
and no adverse actions. Appellant alleged that during this meeting higher management became
very agitated with his concerns as well as very loud and hostile toward him. He asserted that
these events caused him to become defensive and agitated. Appellant alleged that he was placed
in a very hostile environment and was the only person singled out in this meeting.
Appellant also attributed his emotional condition to witnessing a severe accident of a
coworker in November 2014. He stated that this worker was “smashed” between a truck and the
dock, severing his spine. Appellant noted that he experienced stress consoling the employees
who also witnessed this traumatic injury, that he did not receive assistance from upper
management, and that his immediate manager showed an extreme lack of concern for him and
the other employees. He stated, “Their mannerism towards me combined with the traumatization
of this accident resulted in me responding to my manager in a manner which was unprofessional.
I knew that behavior was due to the ever mounting stress, so I removed myself from the
situation.”
Appellant provided an e-mail dated June 5, 2014 from S.W., the plant manager, directing
appellant to attend a mandatory meeting on June 9, 2014. The e-mail stated that invitees were
expected to present themselves appropriately, but that there was no subject that was off limits.
The e-mail further included, “No adverse action will come from this meeting.”
Appellant also submitted a letter from appellant dated June 3, 2014 addressed to E.C.,
describing the employing establishment’s decision to deny his request for a downgrade to
transportation supervisor, his perception of a hostile environment during a June 9, 2014 meeting
during which he spoke, and his feelings of being chastised for being honest. Appellant supplied
an e-mail from E.C. denying a requested meeting on July 25, 2014. He also resubmitted his
July 25, 2014 letter of warning and the January 6, 2015 report from Dr. Gabriel.
By decision dated July 27, 2015, OWCP denied modification of its prior decision, finding
that appellant had failed to establish a compensable factor of employment as causing or
contributing to his diagnosed emotional condition.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.4 There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 136 (1999).

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her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is insufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
6

Supra note 3.

7

Id.

8

Charles D. Edwards, 55 ECAB 258 (2004).

9

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
10

Roger Williams, 52 ECAB 468 (2001).

11

Alice M. Washington, 46 ECAB 382 (1994).

12

J.A., Docket No.12-1964 (issued April 25, 2013); Dennis J. Balogh, 52 ECAB 232 (2001).

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record establishes the truth of the matter asserted, it must base its decision on an analysis of the
medical evidence.
ANALYSIS
Appellant has attributed his emotional condition to a variety of factors not all of which
were properly developed by OWCP. Initially, the Board finds that appellant has not attributed
his emotional condition to a Cutler factor.13
In Thomas D. McEuen,14 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employing
establishment and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under FECA would attach if the facts surrounding the
administrative or personnel action established error or abuse by employing establishment
superiors in dealing with the claimant. Absent evidence of such error or abuse, the resulting
emotional condition must be considered self-generated, and not employment generated. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.15
Appellant acknowledged that during a June 9, 2014 meeting he became defensive and
agitated. He admitted that he abruptly stood and stated, “I’m not listening to this [s--t] anymore”
and left the meeting. The employing establishment issued a letter of warning on July 25, 2014
due to unacceptable conduct on June 9, 2014 when appellant became agitated during a meeting,
raised his voice, and stormed out. The Board finds that there is no evidence that the employing
establishment acted with error or abuse in issuing this disciplinary action.16 While appellant and
the other employees were offered the opportunity to raise any and all concerns without adverse
action, he and others were further directed to present themselves appropriately. He has agreed
that he failed to present himself appropriately.
Appellant requested a downgrade from his current managerial position to a supervisory
position. The employing establishment denied this request. The Board has held that denials by
an employing establishment of a request for a different job, promotion, or transfer are not
compensable factors of employment as they do not involve the employee’s ability to perform his
or her regular or specially assigned work duties, but rather constitute a desire to work in a
different position.17

13

Supra note 3.

14

See Thomas D. McEuen, supra note 9.

15

See Richard J. Dube, 42 ECAB 916, 920 (1991).

16

L.R., Docket No. 14-1990 (issued January 27, 2015) (disciplinary actions such as letters of warning are
considered administrative actions).
17

Donald W. Bottles, 40 ECAB 349, 353 (1988). See Robert Breeden, 57 ECAB 622 (2006) (an employee’s
dissatisfaction with being transferred constitutes frustration from not being permitted to work in a particular
environment or to hold a particular position and is not compensable).

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Appellant also attributed his emotional condition to disparate treatment through the
receipt of an absence inquiry letter and stated that he did not get along with F.E. and P.W. as he
did not like their management style which he felt was a hostile work environment. He
confronted F.E., in a November 22, 2014 meeting about the letter and was angry. Appellant
alleged that F.E. could have called him on his employing establishment cell phone as many other
employees were not contacted through official letters. He claimed disparate treatment.
Appellant has not submitted any evidence substantiating his allegations that he was subjected to
a hostile work environment or disparate treatment. Mere perceptions of harassment or
discrimination are not compensable. To establish the claim for benefits, a claimant must
establish a factual basis for the claim by supporting his or her allegations with probative and
reliable evidence.18 Appellant has not submitted the necessary factual evidence to substantiate
this aspect of his emotional condition claim.
Appellant attributed his emotional condition to the requirement that he attend a
mandatory meeting with the alleged opportunity to discuss all topics and an offer of no adverse
action. The e-mail directing him to attend the meeting including a statement that invitees were
expected to present themselves appropriately. Appellant alleged that when he spoke up at the
meeting higher management became very agitated and hostile toward him. He has submitted no
witness statements or other corroborating evidence supporting this allegation. Verbal
altercations and difficult relationships with supervisors, when sufficiently detailed and supported
by the record, may constitute compensable factors of employment.19 However, this does not
imply that every ostensibly abusive or threatening statement uttered in the workplace will give
rise to coverage under FECA. For appellant to prevail on his claim, he must support his
allegations with probative and reliable evidence. He did not submit sufficient evidence to show
that management acted in an abusive, erroneous, or improper manner in dealing with him. Thus,
any stress or anxiety appellant may have experienced is considered self-generated and not
compensable.20
Appellant has alleged that he developed an emotional condition as the result of
witnessing a coworker’s spine being severed when he was crushed between a truck and the dock
at the employing establishment in November 2014. He submitted conflicting statements with
regard to whether he was physically present at the site of this incident. During his interview with
the employing establishment investigative service, appellant denied that he actually witnessed
the event in November 2014, noting instead that he contacted the EAP to obtain help for the
other employees who witnessed this event and visited the employee in the hospital. In his
narrative statement and to his doctor, he attributed his emotional condition to actually witnessing
this severe accident of a coworker. Appellant also asserted that he, as a supervisor, experienced
stress in consoling the employees who witnessed this traumatic injury, in contacting EAP to aid
these employees, and that he did not receive assistance from upper management and that his
immediate manager showed an extreme lack of concern for him and the other employees.

18

Alice M. Washington, 46 ECAB 382 (1994).

19

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

20

C.T., Docket No. 15-0647 (issued August 20, 2015).

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Appellant has failed to provide sufficient details as to the circumstances surrounding this
incident to establish a factor of employment as to either his personally witnessing the event or as
to helping his subordinates. Thus, the Board finds that these allegations are not factually
established.21
The Board finds that appellant has failed to establish a compensable factor under FECA.
Since no compensable factors of employment have been established, the Board will not address
the medical evidence.22
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

21

Supra note 11.

22

Gerald J. Walck, Docket No. 01-2041 (issued April 28, 2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Asheville, NC,
Employer
__________________________________________

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Appearances:
Timothy D. Welborn, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1449
Issued: November 3, 2017

Case Submitted on the Record

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

JURISDICTION
On July 6, 2016 appellant, through counsel, filed a timely appeal from a February 12,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation effective April 11, 2012; and (2) whether appellant sustained a recurrence of
disability on June 11, 2012, causally related to his August 17, 2010 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On August 17, 2010 appellant, then a 60-year-old engineering equipment operator,
injured his left upper extremity when he struck a machine with a hammer. OWCP accepted his
traumatic injury claim (Form CA-1) for left elbow and forearm sprain, left lateral epicondylitis,
and left shoulder region disorder of bursae and tendons. On June 29, 2011 appellant underwent
OWCP-approved left elbow surgery performed by Dr. Christopher V. Bensen, a Board-certified
orthopedic surgeon. OWCP paid wage-loss compensation beginning June 29, 2011, and
subsequently placed appellant on the periodic compensation rolls.
In a November 15, 2011 follow-up report, Dr. Bensen diagnosed status post extensor
carpi radialis brevis (ECRB) release with persistent pain. He indicated that he was uncertain as
to the etiology of appellant’s symptoms and recommended obtaining a second opinion. In a
separate work status form report, Dr. Bensen advised that appellant could return to work on
November 16, 2011 with a left upper extremity 10-pound lifting/pushing/pulling restriction.4
In a December 19, 2011 report, Dr. Harrison A. Latimer, a Board-certified orthopedic
surgeon and OWCP referral physician, noted appellant’s history and described the results of his
December 14, 2011 physical examination. He reported that appellant showed lack of effort in
shoulder motion, elbow motion, wrist motion, and hand gripping. However, appellant had full
range of motion of theses joints passively and actively with assistance. His diagnoses included
left elbow sprain/strain, lateral epicondylitis, left rotator cuff tendinitis, and acromioclavicular
(AC) joint degenerative disease. Dr. Latimer believed appellant’s left elbow conditions were
work related, but the left shoulder conditions were not medically connected to the work-related
injury. He further indicated that appellant had residual left elbow symptoms, but was capable of
returning to full-time work. Dr. Latimer believed that appellant exaggerated his left upper
extremity symptoms. He advised that appellant was completely capable of performing his
previous work activities as an engineering equipment operator, which required
lifting/pushing/pulling/carrying objects weighing in excess of 40 pounds.

Docket No. 15-0280 (issued November 18, 2015). As discussed infra, the Board reversed OWCP’s October 6,
2014 nonmerit decision denying reconsideration.
3

4

The 10-pound lifting restriction included lifting from floor to waist, waist to shoulder, and lifting above shoulder
level. Dr. Bensen also precluded left arm work involving repetitive activities and work requiring a strong grip.

2

On February 2, 2012 OWCP advised appellant of its proposed termination of wage-loss
compensation based on Dr. Latimer’s December 19, 2011 report. It afforded him 30 days to
submit evidence and/or argument should he disagree with the proposed termination of benefits.
In February 21, 2012 follow-up treatment notes, Dr. Bensen diagnosed persistent left
lateral epicondylitis. On physical examination he noted persistent tenderness over the left lateral
epicondyle and common extensor origin. Appellant had good range of motion with minimal
discomfort, and some pain with resisted wrist extension and supination. Dr. Bensen also noted
that distal motor and sensory examinations were otherwise grossly intact. He recommended
continued conservative treatment and administered a cortisone injection. Dr. Bensen also
recommended continued use of a counterforce brace and light duty activity only. In a
February 21, 2012 work status form report, he diagnosed left tennis elbow and advised that
appellant could return to work on February 22, 2012 with restrictions. Dr. Bensen imposed a 20pound left upper extremity lifting limitation, which included lifting from floor to waist, waist to
shoulder, and lifting above shoulder level. He also precluded him from left arm work involving
repetitive activities and work requiring a strong grip.
On February 27, 2012 appellant returned to work full time, with no loss in wages.
OWCP subsequently advised him that it had terminated wage-loss compensation pursuant to 5
U.S.C. § 8115 because his actual wages as of February 27, 2012 met or exceeded the wages of
his date-of-injury position.
In an April 11, 2012 decision, OWCP terminated appellant’s entitlement to future wageloss compensation benefits effective immediately. It noted that appellant had returned to his
date-of-injury job in “full capacity” effective February 27, 2012 and that OWCP had already
terminated his wage-loss compensation. OWCP acknowledged receipt of Dr. Bensen’s
February 21, 2012 work restrictions, but noted that the employing establishment represented that
appellant had been working full capacity since his return on February 27, 2012. It found that
Dr. Bensen’s February 21, 2012 treatment notes and work restrictions were insufficient to alter
the proposed termination, noting that he failed to explain how appellant’s accepted conditions
continued to limit him from performing his date-of-injury position. OWCP further found that
Dr. Bensen’s February 21, 2012 opinion was contrary to the fact that six days later appellant had
returned to full-duty work, with no evidence that he had subsequently stopped work.
Appellant timely requested a review of the written record and submitted additional
evidence.
In response to a written inquiry from the employing establishment, Dr. Bensen advised
on March 27, 2012 that appellant was unable to perform several of his regular duties as an
engineering equipment operator. This included an inability to operate equipment, such as fieldtype farm and industrial tractors. Dr. Bensen also noted that appellant could not perform various
types of manual labor. He reported that appellant was capable of operating trucks with lowboy
trailers and tractor-trailer/semi combinations and could also perform routine servicing and
preventative maintenance on equipment, but could not operate a chainsaw or power tools.
Dr. Benson noted that appellant could perform light duty. He provided April 20, 2012 treatment
notes and a work status report with the same limitations previously identified on
February 21, 2012.
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OWCP also received a June 11, 2012 letter from the employing establishment advising
appellant that the engineering equipment operator position could not be restructured to
accommodate the various restrictions outlined by Dr. Bensen in his March 27, 2012 response.
The employing establishment informed appellant that if he could not perform the essential
functions of his position, then he must utilize his accrued leave, leave without pay (LWOP), or
apply for and use leave under the Family Medical Leave Act. It further advised that there were
no other available positions for which appellant was qualified and was able to perform with or
without accommodation(s).
Appellant stopped work effective June 11, 2012 and used his accrued leave through
July 29, 2012, at which point he began using LWOP.
By decision dated August 6, 2012, OWCP’s hearing representative affirmed the April 11,
2012 decision. He found that Dr. Latimer’s December 19, 2011 report represented the weight of
the evidence, and supported appellant’s ability to return to full-time, regular duty without
restrictions. With respect to Dr. Bensen’s opinion, the hearing representative noted that he
supplied insufficient rationale to support his assessment regarding appellant’s ability to return to
limited-duty work. He further noted that, effective February 27, 2012, appellant returned to fulltime, regular-duty work.
On August 17, 2012 OWCP received the first of a series of claims for wage-loss
compensation (Form CA-7) for temporary total disability commencing July 29, 2012.5
By letter dated August 31, 2012, OWCP advised appellant that he was not entitled to
receive schedule award benefits and disability compensation concurrently. It further explained
that, if the employing establishment was still unable to accommodate his work restrictions, then
he should file a new Form CA-7 claiming wage-loss compensation on or after
November 18, 2012. On September 26, 2012 OWCP issued a recurrence claim development
letter, which explained the legal criteria, as well as the factual and medical evidence necessary to
establish a recurrence of disability. It requested additional factual and medical evidence, and
reiterated that appellant was not entitled to wage-loss compensation during the period of the
schedule award.
In an October 7, 2012 statement, appellant indicated that he had not sustained any other
injuries or incurred any illness since his original employment injury. He also indicated that he
had no other activities, hobbies, or another job that may have affected his accepted work-related
condition(s). Appellant further explained that when he returned to work on March 11, 2012 he
was still under restrictions imposed by Dr. Bensen. He stated that he was brought back on
restricted, light-duty work, and instructed to only run the boom axe (roadside brush cutting
tractor) while using his right arm exclusively. Appellant further indicated that, by early
June 2012, the boom axe cleaning was complete, and because of his restrictions the employing

5

Appellant submitted a total of three Form CA-7s for temporary total disability covering the period July 29
through September 8, 2012.

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establishment informed him there was no more work available to accommodate him.6 He also
claimed that the employing establishment asked him to work outside of his restrictions, which he
reportedly refused to do out of concern for his own health and safety, as well as concern for the
safety of his coworkers. Appellant indicated that the employing establishment then asked him to
leave.
OWCP also received Dr. Bensen’s July 31, 2012 follow-up treatment notes and a work
status form report. At the time, he indicated that appellant reported gradual improvement in his
condition with diminishing pain and swelling. Dr. Bensen also noted that appellant was able to
work with the exception of heavy lifting. He related that appellant advised he had been
terminated because the employing establishment felt he was unable to perform the essential
functions of his job as an engineering equipment operator. Appellant reported that he would
likely look for different work in the near future. Dr. Bensen examined appellant and diagnosed
left lateral epicondylitis, status post ECRB release. Appellant was said to be “doing well.”7
Dr. Bensen recommended that appellant pursue a job that required lighter duty work, but
otherwise released him to perform activities as tolerated “with no restrictions.” Appellant was to
follow-up on an as-needed basis. In a separate work status report, Dr. Bensen imposed a 20pound left upper extremity lifting restriction, which included lifting from floor to waist, waist to
shoulder, and lifting above shoulder level. He also precluded left arm work involving repetitive
activities and work requiring a strong grip. Dr. Bensen advised that the identified work
restrictions were permanent.
In a December 12, 2012 letter, OWCP informed appellant that it would not take further
action on his claims (Form CA-7) for wage-loss compensation for periods subsequent to the
April 11, 2012 termination of wage-loss compensation. It explained that the weight of the
medical evidence, as represented by Dr. Latimer’s December 19, 2011 report, supported that
appellant was capable of resuming his regular job without limitations. OWCP further explained
that the fact that appellant’s physician’s restrictions were not being followed was outside the
purview of his workers’ compensation claim. Lastly, it explained that if appellant disagreed with
the determination that he was able to resume his regular-duty position, then he should pursue the
appeal rights associated with the hearing representative’s August 6, 2012 decision.
OWCP subsequently received a May 14, 2013 follow-up report from Dr. Bensen who
explained that appellant had left lateral epicondylitis with atypical muscular swelling.
Dr. Bensen diagnosed elbow joint pain and left elbow lateral epicondylitis. He indicated that he
was uncertain as to the etiology of appellant’s new symptoms. Dr. Bensen recommended a

6

In a September 12, 2012 letter, the employing establishment indicated that on March 13, 2012 appellant refused
to operate a chainsaw, claiming the vibration would irritate his elbow. Therefore, the employing establishment
sought further input from Dr. Bensen, which resulted in his March 27, 2012 report. According to the employing
establishment, Dr. Bensen ruled out three of the five essential elements of the position of engineering equipment
operator. Additionally, the employing establishment confirmed that appellant had been working as a boom axe
operator from March 26 through June 11, 2012 because he remained unable to perform the work of his position
description. It also confirmed that in early June 2012, there was no light-duty work available to assign appellant
within his restrictions, as outlined by Dr. Bensen.
7

Dr. Bensen also provided a rating of 10 percent permanent impairment of the left elbow.

5

magnetic resonance imaging (MRI) scan. In a May 14, 2013 work status report, he indicated that
appellant could not return to work.
A June 21, 2013 left elbow MRI scan revealed injury to the origin of the common
extensor tendon, which was partially torn from its humeral attachment. There was also injury to
the humeral attachment of the radial collateral ligament and evidence of a small subchondral cyst
in the lateral epicondyle. Lastly, there was evidence of tendinosis of the common flexor tendon.
In a July 16, 2013 follow-up report, Dr. Bensen provided an impression of status post left
ECRB release with persistent pain. Appellant reported intermittent periods of left elbow pain, as
well as pain-free intervals. Dr. Bensen noted that appellant seemed to think his pain was likely
related to activity, such as yard work. He reviewed appellant’s recent MRI scan results, and
commented that some of the reported findings were likely artifacts from appellant’s previous
surgery. Dr. Bensen did not think the MRI scan results were suggestive of anything that would
require additional surgical intervention. He recommended continued conservative management,
including nonsteroidal anti-inflammatory drugs (NSAID), counterforce bracing, and activity
modification. Dr. Bensen advised appellant to follow-up on an as-needed basis. In a separate
July 16, 2013 work status report, he advised that appellant could return to work on July 17, 2013
with a 10-pound left upper extremity lifting restriction. Dr. Bensen also indicated that the noted
restriction was permanent.
On August 8, 2013 counsel requested reconsideration of the August 6, 2012 termination
decision. He noted that appellant attempted a return to work on February 27, 2012, but by
March 22, 2012 it was apparent that he was unable to perform the essential functions of his job.
Counsel argued that OWCP should not have deferred to the second opinion examiner’s findings,
but instead should have relied on Dr. Bensen’s opinion that appellant was unable to perform the
full-time duties of an engineering equipment operator.
In an October 6, 2014 decision, OWCP denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error. Appellant
appealed to the Board.
By decision dated November 18, 2015, the Board reversed OWCP’s October 6, 2014
decision.8 Although the August 8, 2013 reconsideration request was untimely, the Board found
that the evidence appellant submitted raised a substantial question as to the correctness of
OWCP’s decision, and he had therefore demonstrated clear evidence of error. The Board
explained that the hearing representative had not considered available evidence regarding the
employing establishment’s inability to accommodate appellant’s restrictions, effective
June 11, 2012.
In a February 12, 2016 merit decision, OWCP denied modification of the August 6, 2012
decision.9 It found that Dr. Bensen had not provided any medical rationale for the imposed
8

See supra note 3.

9

OWCP issued a January 4, 2016 decision, which found that appellant’s request for reconsideration was
untimely. It also noted that the Board found that appellant demonstrated clear evidence of error, and therefore,
OWCP advised that a separate merit decision was forthcoming.

6

lifting restriction(s) and appellant’s reported inability to perform the essential duties of the dateof-injury job. OWCP further found that the medical reports of record did not address how the
increased disability was due to the original injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.10 Having determined that an employee has a disability
causally related to his federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the
employment.11
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to the claimant.12
In order to prevail, the claimant must establish by the weight of the reliable, probative, and
substantial evidence that he had an employment-related disability which continued after
termination of compensation benefits.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation,
effective April 11, 2012. First, the Board notes that on February 27, 2012 appellant resumed
full-time work with no loss of wage-earning capacity. Therefore, OWCP properly removed him
from the periodic compensation rolls.14 Second, it properly relied upon Dr. Latimer’s
December 19, 2011 report in determining that appellant was capable of resuming his full-time,
regular duties as an engineering equipment operator. He found that appellant continued to have
residuals of his accepted left elbow condition based on his subjective pain complaints. With
respect to left upper extremity motion and/or strength deficits, Dr. Latimer believed that
appellant displayed signs of symptom exaggeration. He reported that appellant showed complete
lack of effort in shoulder motion, elbow motion, wrist motion, and hand gripping. However,
appellant had full range of motion of theses joints passively and actively with assistance. Based
on his overall evaluation, which included a review of appellant’s history of injury, medical
records, and a description of appellant’s job duties, Dr. Latimer found appellant “completely
capable” of performing his previous full-time work activities as an engineering equipment
operator, which required lifting/pushing/pulling/carrying objects weighing in excess of 40
pounds.

10

Curtis Hall, 45 ECAB 316 (1994).

11

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

12

See A.B., Docket No. 14-1510 (issued October 23, 2014).

13

Id.

14

See 20 C.F.R. §§ 10.503(d), 10.504(d).

7

The proper weight to be accorded a physician’s opinion is determined by its reliability, its
probative value, and its convincing quality.15 The factors that comprise the evaluation of
medical evidence include the opportunity for and the thoroughness of physical examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.16 Dr. Latimer’s December 19, 2011 opinion satisfies the above-noted criteria, and
accordingly, represents the weight of the medical evidence regarding appellant’s ability to
resume his full-time, date-of-injury position on or about April 11, 2012.
Appellant’s surgeon, Dr. Bensen, imposed a 10-pound lifting restriction effective
November 16, 2011, but admittedly at the time was uncertain as to the etiology of appellant’s
then-current left upper extremity complaints, and thus, recommended a second opinion. In his
February 21, 2012 follow-up report, Dr. Bensen adjusted appellant’s lifting restriction to 20
pounds without explanation. In his March 27, 2012 response to the employing establishment’s
inquiry regarding which of the engineering equipment operator duties appellant was capable of
performing, Dr. Bensen merely placed a check mark next to the description of the particular duty
appellant either could or could not perform. He did not otherwise elaborate upon the basis of
such determination. Lastly, Dr. Bensen’s April 20, 2012 work status report similarly offered no
explanation as to why appellant was restricted to lifting no more than 20 pounds.
None of the above-referenced reports from Dr. Bensen offered an opinion as to why or
how appellant’s accepted left upper extremity condition(s) precluded him from resuming his
date-of-injury position. Consequently, OWCP’s hearing representative properly deferred to
Dr. Latimer’s well-rationalized report in affirming the termination of appellant’s wage-loss
compensation effective April 11, 2012.17
LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.18 Recurrence of disability also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his work-related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his established physical
limitations.19 Generally, a withdrawal of a light-duty assignment would constitute a recurrence
15

E.g., K.W., 59 ECAB 271, 279-80 (2007).

16

Id. at 280.

17

The hearing representative did not specifically address entitlement to wage-loss compensation on or after
April 11, 2012. Although there was evidence that appellant had stopped work on June 11, 2012, OWCP had yet to
receive appellant’s Form CA-7 claiming lost wages beginning July 29, 2012.
18

20 C.F.R. § 10.5(x).

19

Id.

8

of disability where the evidence established continuing injury-related disability for regular
duty.20 A recurrence of disability does not apply when a light-duty assignment is withdrawn for
reasons of misconduct, nonperformance of job duties, or other downsizing or where a loss of
wage-earning capacity determination is in place.21
Absent a change or withdrawal of a light-duty assignment, a recurrence of disability
following a return to light duty may be established by showing a change in the nature and extent
of the injury-related condition such that the employee could no longer perform the light-duty
assignment.22
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence is causally related to the
original injury.23 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes that the condition is causally related to the employment injury.24 The
physician’s opinion must be based on a complete and accurate factual and medical history and
supported by sound medical reasoning.25
ANALYSIS -- ISSUE 2
Therefore, the burden for reinstating compensation benefits shifted to appellant.26
Appellant stopped work on June 11, 2012 and later filed several claims for compensation (Form
CA-7) for lost wages beginning July 29, 2012. As noted, OWCP granted a schedule award on
August 29, 2012, which covered a 15.6-week period from July 31 through November 17, 2012.
Appellant is not entitled to receive wage-loss compensation and a schedule award for the same
time period.27
Although the record does not include a formal, written limited-duty assignment, after
appellant returned to work in February 2012, the employing establishment made an effort to
accommodate some, if not all of the restrictions identified by Dr. Bensen on February 21 and
March 27, 2012. The employing establishment acknowledged that from March 22 through
20

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

21

20 C.F.R. §§ 10.5(x), 10.104(c) and 10.509; see Federal (FECA) Procedure Manual, Part 2 -- Claims,
Recurrences, Chapter 2.1500.2b (June 2013).
22

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

23

20 C.F.R. § 10.104(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5
and 2.1500.6 (June 2013).
24

See S.S., 59 ECAB 315, 318-19 (2008).

25

Id. at 319.

26

See A.B., Docket No. 14-1510 (issued October 23, 2014); Virginia Davis-Banks, 44 ECAB 389 (1993).

27

A schedule award is payable consecutively, but not concurrently with an award for wage loss for disability for
the same injury. See S.W., Docket No. 10-2071 (issued July 11, 2011); Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.4a(2) (February 2013).

9

June 11, 2012, appellant served as the primary operator of a boom axe because he remained
unable to perform the work of his position description. Dr. Bensen had effectively precluded
appellant from performing three of the five essential elements of his engineering equipment
operator position. The employing establishment also acknowledged that as of June 11, 2012, it
was no longer able to accommodate appellant’s restrictions, as identified by Dr. Bensen.
Appellant’s claim for wage-loss compensation on or after July 29, 2012 is based on the
employing establishment’s inability to accommodate him after June 11, 2012. Recurrence of
disability includes an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his work-related injury or
illness is withdrawn.28 However, entitlement to FECA compensation benefits is not premised
solely on withdrawal of a light- or limited-duty assignment. The medical evidence of record
must establish continuing injury-related disability for regular duty.29
Subsequent to appellant’s June 11, 2012 work stoppage, Dr. Bensen provided follow-up
treatment notes and work status reports dated, May 14 and July 16, 2013. Throughout this
period he continued to diagnose left elbow lateral epicondylitis and continued to impose leftupper extremity work restrictions.
When Dr. Bensen examined appellant on July 31, 2012, he was noted to be “doing well.”
Appellant was to follow-up on an as-needed basis. Dr. Bensen recommended that he pursue a
job that required lighter-duty work, but otherwise he released appellant to perform activities as
tolerated “with no restrictions.” In a similarly dated work status report, he imposed a 20-pound
left upper extremity lifting restriction, which included lifting from floor to waist, waist to
shoulder, and lifting above shoulder level. Dr. Bensen also precluded left arm work involving
repetitive activities and work requiring a strong grip. He advised that the identified work
restrictions were permanent.
Dr. Bensen’s May 14, 2013 follow-up treatment notes indicated that appellant had
atypical muscular swelling. He diagnosed elbow joint pain and left elbow lateral epicondylitis.
Dr. Bensen noted that he was uncertain as to the etiology of appellant’s new symptoms. He also
recommended a left elbow MRI scan. In a May 14, 2013 work status report, Dr. Bensen
indicated that appellant could not return to work.
In a July 16, 2013 follow-up report, Dr. Bensen noted that appellant reported
experiencing intermittent periods of left elbow pain, as well as pain-free intervals. Appellant
seemed to think his pain was likely related to activity, such as yard work. Dr. Bensen reviewed a
recent left elbow MRI scan that reportedly did not reveal anything requiring additional surgery.
He again diagnosed left elbow lateral epicondylitis, and recommended continued conservative
management, including NSAIDs, counterforce bracing, and activity modification. Dr. Bensen
advised appellant to follow-up on an as-needed basis. In a separate July 16, 2013 work status
report, he indicated that appellant could return to work on July 17, 2013 with a 10-pound left

28

20 C.F.R. § 10.5(x).

29

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6a(4) (June 2013).

10

upper extremity lifting restriction. Dr. Bensen also indicated that the noted restriction was
permanent.
Dr. Bensen continued to diagnose left elbow lateral epicondylitis as noted, but he altered
appellant’s work restrictions without explanation. Appellant went from a 20-pound lifting
restriction in July 2012 to no work at all in May 2013, and then to a 10-pound left upper
extremity lifting restriction in July 2013. Noticeably absent from the above-referenced reports
was any explanation as to how or why appellant’s accepted left upper extremity condition(s)
precluded him from performing his date-of-injury position as an engineering equipment operator.
At one point, Dr. Bensen expressed uncertainty as to the etiology of appellant’s symptoms and
he subsequently reported that appellant seemed to think his pain was likely related to activity,
such as yard work. Given the lack of medical evidence demonstrating causal relationship
between appellant’s employment injury and his current left upper extremity complaints and/or
limitations, the Board finds that appellant failed to establish that he was disabled from
performing his date-of-injury position on or after June 11, 2012.30
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 OWCP properly terminated appellant’s entitlement to wage-loss
compensation effective April 11, 2012 as he was no longer disabled from performing his date-ofinjury position. The Board further finds that appellant failed to establish that he sustained a
recurrence of disability on or after June 11, 2012, causally related to his August 17, 2010
employment injury.

30

A physician’s opinion on causal relationship must be supported by medical rationale, explaining the nature of
the relationship between the diagnosed condition and appellant’s specific employment factor(s). Victor J.
Woodhams, 41 ECAB 345, 352 (1989).

11

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2017
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Taylor, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1617
Issued: November 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:

JURISDICTION
On May 23, 2007 appellant filed a timely appeal from a February 28, 2007 decision of
the Office of Workers’ Compensation Programs which denied his claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award.
FACTUAL HISTORY
On August 1, 2003 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim alleging that he developed bilateral fasciitis and heel pain as a result of standing
and walking required by his letter carrier position.1 He stopped work on May 22, 2003 and
returned to work full-time limited duty on May 28, 2003 and retired in 2005. Appellant came
under the treatment of Dr. Daniel Zahari, a podiatrist, who treated him for bursitis, heel spur,

1

Appellant filed a separate claim for left carpal tunnel syndrome which was accepted by the Office,
File No. 09-2049027. This claim is not before the Board at this time.

bilateral plantar fasciitis and capsulitis of the lateral aspect of the right midfoot. Dr. Zahari
submitted progress reports noting appellant’s status.
On January 19, 2005 the Office accepted appellant’s claim for aggravation of bilateral
plantar fasciitis and aggravation of capsulitis of the right foot.
In reports dated March 11, 2005 to July 19, 2006, Dr. Zahari noted that appellant failed to
respond to conservative treatment and recommended surgical intervention. He noted mild edema
of the plantar medial aspect of the left heel and right heel, deep tendon reflexes was normal,
muscle strength was normal, muscle tone was normal, examination of the heels shows pain to
palpation of the plantar medial aspect of the bilateral feet and capsulitis, swelling and painful
range of motion. Dr. Zahari diagnosed bursitis, heel spur, bilateral plantar fasciitis and capsulitis
of both feet. In a schedule award worksheet dated July 19, 2006, he noted that appellant had 50
percent impairment of each foot. Dr. Zahari noted that appellant’s feet caused chronic pain and
advised that he could walk or stand for only short periods of time. He noted that appellant
reached maximum medical improvement on July 19, 2006.
The Office referred to an Office medical adviser for evaluation of permanent partial
impairment of the lower extremities in accordance with the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.2 In a report dated August 23,
2006, the Office medical adviser indicated that Dr. Zahari did not provide an impairment rating
in accordance with the A.M.A., Guides. He referenced the schedule award worksheet dated
July 19, 2006 prepared by Dr. Zahari which provided an impairment rating of 50 percent to both
feet. The medical adviser noted that Dr. Zahari failed to provide an explanation of how this
impairment rating was calculated or mention the tables or figures to support his determination.
He recommended that appellant be referred for second opinion evaluation regarding permanent
impairment.
Appellant submitted additional reports from Dr. Zahari who diagnosed bursitis, heel spur,
bilateral plantar fasciitis and capsulitis of both feet. Dr. Zahari opined that appellant was totally
disabled.
On August 23, 2006 the Office referred appellant to Dr. Bruce D. Abrams, a Boardcertified orthopedic surgeon, for a determination of whether appellant had residuals or permanent
impairment attributable to his accepted conditions.
In a September 27, 2006 report, Dr. Abrams noted a history of appellant’s work-related
condition and subsequent treatment. He noted examination findings of full, normal range of
motion in appellant’s feet with 25 degrees of dorsiflexion, 50 degrees of plantar flexion, 30
degrees of inversion, 30 degrees of eversion and 15 degrees of subtalar motion for varus and
valgus combined. Dr. Abrams noted that other findings were normal such as a negative drawer
sign, no tenderness or swelling in the feet and ankles, normal gait, intact sensation and no
atrophy of the calves. He noted that x-rays of the feet revealed calcific density in the plantar
fascial region in the hindfoot, no calcaneal exostoss and the joints of the feet and ankle were
normal. Dr. Abrams diagnosed subjective pain in the hindfoot and heels with a normal
2

A.M.A., Guides (5th ed. 2001).

2

examination. He advised that appellant did not experience a temporary or permanent
aggravation of his bilateral foot condition and opined that his foot pain was not necessarily
associated with his occupational duties as a mail carrier. Dr. Abrams noted that the physical
examination was normal and appellant’s complaints were all subjective. He opined that
appellant had no loss of motion or neurologic function and did not have a permanent impairment
of his feet. Dr. Abrams determined that appellant sustained no impairment. He further noted
that appellant did not require work restrictions for his bilateral foot condition and required no
further treatment for his feet as it related to his employment. Dr. Abrams determined that
appellant reached maximum medical improvement on September 27, 2006.
Appellant submitted a schedule award worksheet from Dr. Zahari dated July 19, 2006.
He rated a 75 percent bilateral foot impairment, noting that appellant’s feet caused chronic pain
and he could walk or stand for only short periods of time. Dr. Zahari noted that appellant
reached maximum medical improvement on July 19, 2006. In reports dated October 10 and 11,
2006, he advised that appellant was under his care for heel spurs, capsulitis, plantar fasciitis. He
noted that sensation of the feet was normal, deep tendon reflexes were normal, muscle strength
was normal, muscle tone was normal, inspection and palpation of the bones, joints and muscles
was unremarkable and both feet showed evidence of capsulitis with swelling with painful range
of motion. Dr. Abrams diagnosed bursitis, heel spur, bilateral plantar fasciitis, capsulitis of both
feet and possible nerve entrapment of both heels. In attending physician’s report’s dated
October 13 and November 8, 2006, he noted work-related diagnoses and indicated that
appellant’s condition would not improve.
On November 8, 2006 appellant filed a claim for a schedule award.
In a report dated November 24, 2006, the Office medical adviser concurred with
Dr. Abram’s determination that appellant did not sustain any permanent partial impairment of
lower extremities. He noted Dr. Abrams findings upon physical examination for ankle
dorsiflexion of 25 for zero percent impairment;3 ankle plantar flexion of 50 degrees for zero
percent impairment;4 hindfoot inversion of 30 degrees for zero percent impairment;5 hindfoot
eversion of 30 degrees for zero percent impairment;6 varus of 15 degrees for zero percent
impairment7 and valgus of 15 degrees for zero percent impairment.8 The medical adviser that
Dr. Abrams noted a normal physical examination including range of motion and found only
subjective bilateral heel pain. He opined that appellant’s bilateral foot condition was a chronic,
preexisting problem with no objective findings upon physical examination and determined that
appellant was not entitled to a schedule award for functional impairment.
3

Id. at 537, Table 17-11.

4

Id.

5

Id. at 537, Table 17-12.

6

Id.

7

Id. at 537, Table 17-13.

8

Id.

3

Appellant submitted reports from Dr. Zahari dated November 8, 2006 to February 9,
2007, who noted that the physical examination was unchanged and diagnosed bursitis, heel spur,
bilateral plantar fasciitis, capsulitis of both feet and possible nerve entrapment of both heels.
In a decision dated February 28, 2007, the Office denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act9 and its
implementing regulations10 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.11
ANALYSIS
The Office accepted appellant’s claim for aggravation of bilateral plantar fasciitis and
aggravation of capsulitis of the right foot. On appeal, appellant contends that he is entitled to a
schedule award for permanent impairment of his lower extremities.
The Office referred appellant for a second opinion to Dr. Abrams. In a September 27,
2006 report, Dr. Abrams noted findings upon physical examination of full and normal range of
motion for the feet. He noted a normal physical examination. Dr. Abrams stated that x-rays of
the feet revealed calcific density in the plantar fascial region in the hindfoot, no calcaneal
exostosis and the joints of the feet and ankle were normal. He diagnosed subjective pain in the
hindfoot and heels with a normal examination, status post carpal tunnel surgery on the left hand
with numbness and loss of function, degenerative joint disease of the lumbar spine, bilateral knee
and left shoulder, impingement syndrome and rotator cuff disease, exogenous obesity and
hypertension. Dr. Abrams opined that appellant sustained a zero percent impairment. He
determined that appellant reached maximum medical improvement on September 27, 2006 and
advised that he did not require work restrictions for his bilateral foot condition or further
treatment for his feet as it related to his employment.
The Board finds that, under the circumstances of this case, the opinion of Dr. Abrams is
sufficiently well rationalized and based upon a proper factual background such that it establishes
that appellant did not sustain a work-related permanent impairment of the lower extremities.
Dr. Abrams opined that to a reasonable degree of medical certainty appellant has no disability as
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404 (1999).

11

Id.

4

a result of the diagnosed conditions of aggravation of bilateral plantar fasciitis and aggravation of
capsulitis of the right foot.
The Board has carefully reviewed Dr. Zahari’s reports and notes that he did not
adequately explain how his impairment ratings were reached in accordance with the relevant
standards of the A.M.A., Guides.12 In two different schedule award worksheets dated July 19,
2006, Dr. Zahari noted that appellant sustained 50 percent bilateral foot impairment and 75
percent bilateral foot impairment; however, he failed to provide his calculations in support of this
determination. He did not cite to any tables or charts in the A.M.A., Guides to support his
impairment rating. Therefore, the Board finds that Dr. Zahari did not properly follow the
A.M.A., Guides. An attending physician’s report is of diminished probative value where the
A.M.A., Guides were not properly followed.13
The Office medical adviser reviewed the findings of Dr. Abram and agreed with his
determination that appellant did not sustain any impairment of his lower extremities due to his
accepted conditions. He referenced Dr. Abram’s examination findings for ankle dorsiflexion of
25 for zero percent impairment;14 ankle plantar flexion of 50 degrees for zero percent
impairment;15 hindfoot inversion of 30 degrees for zero percent impairment;16 hindfoot eversion
of 30 degrees for zero percent impairment;17 varus of 15 degrees for zero percent impairment18
and valgus of 15 degrees for zero percent impairment.19 The medical adviser found no basis on
which to attribute any permanent impairment pursuant to the A.M.A., Guides.
The Board finds that the Office properly denied appellant’s claim for a schedule award as
there is no evidence of record, conforming with the A.M.A., Guides, indicating that appellant has
permanent partial impairment of the lower extremities.
CONCLUSION
The Board finds that the Office properly determined that appellant was not entitled to a
schedule award for permanent partial impairment of the lower extremities.

12

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

13

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
14

A.M.A., Guides 537, Table 17-11.

15

Id.

16

Id. at 537, Table 17-12.

17

Id.

18

Id. at 537, Table 17-13.

19

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
RESERVE FORCES COMMAND,
Bremerton, WA, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0666
Issued: October 23, 2019

Case Submitted on the Record

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

JURISDICTION
On February 4, 2019 appellant filed a timely appeal from a December 10, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). 2 As more than 180 days
has elapsed from OWCP’s last merit decision, dated February 16, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

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

Appellant retained counsel after the appeal was filed.

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On June 21, 2016 appellant, then a 49-year-old program specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of psychological distress
causally related to factors of her federal employment. The employing establishment indicated that
she had resigned from employment on March 25, 2016.4
In a statement dated July 29, 2016, appellant, through counsel, asserted that the employing
establishment erred in placing her on a PIP and issuing a notice of unacceptable performance. She
noted that the employing establishment had subsequently cancelled both the notice of unacceptable
performance and her placement on a PIP after she filed a grievance. Appellant further maintained
that management erred in denying her access to her personnel file. She contended that
management engaged in disparate treatment when it denied her request for “use it or lose it” leave,
and told her not to respond to e-mails during training. Appellant advised that she had to plan a
predeployment event without adequate assistance and that from 2007 to 2012 she had worked
overtime in order to complete her regularly assigned employment duties. In 2012 the employing
establishment limited her to working 40 hours a week, even though she continued to work overtime
due to weekend events. M.T. instructed appellant to complete an after action report without
advance notice that such a report would be required. She maintained that she had experienced
stress trying to complete her documents, including travel orders, to M.T.’s satisfaction.
By decision dated February 16, 2017, OWCP denied appellant’s emotional condition
claim. It found that she had not established a compensable employment factor or submitted
medical evidence containing a diagnosed condition. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On February 16, 2018 appellant submitted medical evidence and additional factual
evidence. She further submitted an unsigned 29-page statement. Appellant related that it was in
“reply to the responses my supervisor provided and the questions you so far presented….” She
summarized the attachments submitted. Appellant quoted OWCP’s findings in its February 16,
2017 decision. Below the quotes, she provided her rebuttal to OWCP’s determinations and cited
attachments which she asserted supported her allegations.
Appellant related that she had filed a discrimination claim that was settled favorably and
that the Office of Personnel Management (OPM) had approved her application for disability
4

In a statement dated November 18, 2014, submitted in connection with another OWCP file number, M.T., a
commander and appellant’s supervisor, advised that a support specialist contract position was vacant April through
August 2014, but that appellant had no additional demands placed upon her due to the vacancy. He advised that she
was currently on a performance improvement plan (PIP) and had to ask him if she wanted assistance from a contractor.
M.T. related that appellant was off work on sick leave for three weeks and that he had provided her with a week to
adjust when she returned to work. She maintained that her workload was excessive because of planning for a program
event and meeting the requirements of the PIP, which M.T. advised constituted her work duties.

2

retirement. She contended that M.T. had lied in his responses to OWCP and described actions
taken by M.T., including making false accusations against her in September 2014, issuing a
proposed suspension on September 24, 2014, placing her on a PIP on September 24, 2014 without
prior notice of unsatisfactory job performance, denying her request for her personnel file, and
denying her requests for assistance with her program. Appellant maintained that M.T. had
expanded her job duties under the PIP and had assigned her an unreasonable amount of work,
including completing orders for all service members and their families. Management also refused
to grant her request for leave without pay (LWOP). Appellant noted that the employing
establishment subsequently cancelled her proposed five-day suspension and placement on a PIP.
She related that she resigned on March 26, 2016 to retire on disability.
Appellant challenged OWCP’s findings in its February 16, 2017 decision. She contended
that her placement on a PIP was discriminatory and constituted error by the employing
establishment. Appellant maintained that management committed error in refusing to grant her
leave request and marking her as absent without leave (AWOL), noting that it was later changed
to LWOP. She advised that M.T. refused to allow her help from the contractor specifically hired
to assist her with her duties and refused to reasonably accommodate her for her disability.
Management limited appellant, but not her coworkers, to 40 hours a week except when she had
weekend events even though she was on a maxi schedule. M.T. assigned her an after action report
and requested repeated revisions of the report to show her inability to perform the duties of her
position. He also denied her access to her personnel file against regulations. Appellant advised
that she had a work laptop but had never taken it to events. She asserted that she had generated
travel orders for reservists and spouses from April through June 2014, in contradiction to M.T.’s
assertion.
Appellant submitted additional evidence, including a November 12, 2014 letter from the
employing establishment suspending her for five days.
On October 9, 2015 the employing establishment cancelled the notice of unacceptable
performance and placement of appellant on a PIP.
Appellant also submitted an e-mail from M.T. requesting revisions to a memorandum and
a March 27, 2015 letter indicating that he was designating her as AWOL effective March 27, 2015.
She further submitted a November 2, 2014 letter regarding leave usage, copies of her PIP
requirements, an October 14, 2017 letter extending her PIP and modifying performance
expectations, and an October 3, 2014 letter submitted in response to a proposed suspension.
Appellant also submitted a letter from an individual confirming that she wrote travel orders.
The record contains a portion of a March 2016 settlement agreement between appellant
and the employing establishment regarding an Equal Employment Opportunity (EEO) complaint.
The employing establishment agreed to pay her representative, remove disciplinary action from
her personnel file, cooperate with her application for disability retirement, and change her AWOL
status to LWOP pending receipt of her resignation. Appellant agreed to withdraw her
discrimination complaint.
On September 11, 2018 counsel requested the status of appellant’s February 2018 request
for reconsideration. In a September 14, 2018 response, OWCP advised that it had received

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numerous documents subsequent to its February 16, 2017 decision, but not a request for
reconsideration.
In response to a November 15, 2018 telephone call from appellant, OWCP advised that she
should submit a clear request for reconsideration.
On November 26, 2018 appellant requested reconsideration.
By decision dated December 10, 2018, OWCP denied appellant’s request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his or her own motion or on applicatio n.
The Secretary, in accordance with the facts found on review, may end, decrease, or increase the
compensation awarded or award compensation previously refused or discontinued. 5
OWCP, through regulation, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision. 6 The
one-year period for requesting reconsideration begins on the date of the original OWCP decision,
but the right to reconsideration within one year also accompanies any subsequent merit decision
on the issues, including any merit decision by the Board. 7 Timeliness is determined by the
document receipt date (i.e., the “received date” in OWCP’s integrated Federal Employees’
Compensation System.)8 The Board has found that the imposition of the one-year limitation does
not constitute an abuse of the discretionary authority granted OWCP under section 8128(a) of
FECA.9
OWCP may not deny an application for review solely because the application was not
timely filed. When an application for review is untimely filed, it must nevertheless undertake a
limited review to determine whether the application demonstrates clear evidence of error. 10
OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607(a); see also D.G., Docket No. 18-1038 (issued January 23, 2019).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

8

Id. at Chapter 2.1602.4(b) (February 2016).

9

See R.L., Docket No. 18-0496 (issued January 9, 2019).

10

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

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review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP. 11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP ’s decision.12 The Board
notes that clear evidence of error is intended to represent a difficult standard.13 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error. 14 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion. 15 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.16 The Board makes an independent determination as to whether a claimant has
demonstrated clear evidence of error on the part of OWCP. 17
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
An application for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 18 As appellant’s request for reconsideration was not received
until November 26, 2018, more than one year after the issuance of its February 16, 2017 decision,
it was untimely filed. Consequently, she must demonstrate clear evidence of error by OWCP in
its February 16, 2017 decision.19
On appeal counsel contends that the correspondence OWCP received on February 16, 2018
constituted a request for reconsideration. OWCP’s procedures provide, regarding reconsideration
requests, “While no special form is required, the request must be in writing, be signed and dated
by the claimant or authorized representative, and be accompanied by relevant new evidence or

11

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a) (February 2016).

12

G.G., supra note 10.

13

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra 9.

14

E.B., Docket No .18-1091 (issued December 28, 2018).

15

J.W., Docket No. 18-0703 (issued November 14, 2018).

16

P.L., Docket No. 18-0813 (issued November 20, 2018).

17

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

18

20 C.F.R. § 10.607(a).

19

Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

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argument not previously considered.”20 Appellant did not sign the February 16, 2018
correspondence, and thus it fails to meet the requirements for a valid reconsideration request. 21
The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP in issuing its February 16, 2017 decision. The evidence and argument she submitted
failed to raise a substantial question concerning the correctness of OWCP’s decision.22 Appellant
asserted that she had received a favorable decision on her discrimination claim. She submitted
part of a March 2016 settlement agreement in which the employing establishment agreed to pay
attorney’s cost, removal of all disciplinary action from her personnel file, cooperate with her
application for disability retirement, and change her AWOL status to LWOP pending receipt of
her resignation. The portion of the settlement in the record, however, does not contain an
admission of fault by the employing establishment or otherwise demonstrate that OWCP
committed an error in denying appellant’s claim.23 Appellant has thus not explained how this
evidence was positive, precise, and explicit in manifesting on its face that OWCP committed an
error in denying her emotional condition claim. 24
Appellant submitted a statement addressing OWCP’s findings in its February 16, 2017
decision. She contended that management erred and discriminated against her in marking her as
AWOL, limiting her work hours, and placing her on a PIP. Appellant further alleged that M.T.
refused to permit a contractor to help her even though the contractor was hired for that purpose,
refused to reasonably accommodate her disability, unreasonably requested multiple revisions on
an after action report, denied her access to her personnel file, and erroneously denied that she
generated travel orders for reservists and spouses from April through July 2014. She submitted
e-mails from M.T. requesting revisions to a memorandum, a March 27, 2017 letter classifying her
as AWOL, letters regarding her PIP, and letters regarding a proposed suspension and leave usage.
Appellant did not, however, explain how her arguments or the evidence submitted raised a
substantial question regarding the correctness of OWCP’s February 16, 2017 decision. As noted,
the term clear evidence is a difficult standard. 25 It is not enough to show that the evidence could
be construed to produce a contrary conclusion. 26 None of the evidence manifests on its face that
OWCP committed an error in denying appellant’s emotional condition claim. Appellant has not
submitted evidence of sufficient probative value to raise a substantial question as to the correctness
of OWCP’s decision. Thus, the evidence is insufficient to demonstrate clear evidence of error. 27

20

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.2(a) (October 2011).

21

Id.

22

See P.T., Docket No. 18-0494 (issued July 9, 2018).

23

See W.R., Docket No. 18-1042 (issued February 12, 2019).

24

See M.B., Docket No. 17-1505 (issued January 9, 2018).

25

R.M., Docket No. 18-1393 (issued February 12, 2019).

26

W.D., Docket No. 19-0062 (issued April 15, 2019).

27

Id.

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On appeal counsel argues that OWCP failed to address her allegations of overwork. As
noted, however, the Board does not have jurisdiction over the merits of the claim. Appellant has
not presented evidence or argument that raises a substantial question as to the correctness of
OWCP’s decision for which review is sought. 28
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

28

R.T., Docket No. 14-0779 (issued August 22, 2014).

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