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

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

Docket No. 16-0508
Issued: July 5, 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 January 22, 2016 appellant, through counsel, filed a timely appeal from a
December 3, 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) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a
recurrence of disability from March 25 to April 10, 2013 due to accepted right upper extremity
conditions; and (2) whether appellant has met her burden of proof to establish that she sustained
reflex sympathetic dystrophy syndrome or complex regional pain syndrome of the right upper
extremity, consequential to accepted upper extremity conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on April 29, 2010 appellant, then a 41-year-old rural carrier,
sustained bilateral carpal tunnel syndrome, enesopathy of the elbow region, and other peripheral
enesopathies.2 Following intermittent absences, she stopped work on August 16, 2010. OWCP
paid wage-loss compensation from October 1 through November 27, 2010 and continuing.3
December 27, 2010 electromyography (EMG) and nerve conduction velocity (NCV)
studies demonstrated bilateral carpal tunnel syndrome and mild bilateral cubital tunnel
syndrome.4 On March 14, 2011 Dr. Ivica Ducic, an attending Board-certified plastic surgeon,
performed right ulnar nerve neurolysis at the elbow, right partial medial epicondylectomy, and
right endoscopic carpal tunnel release. Appellant received compensation for work absences
through January 14, 2012.5
Dr. Ducic submitted January 24 and October 3, 2012 reports diagnosing pain and
paresthesias of the right arm. He prescribed medication.6
Dr. Suneetha Budampati, an attending Board-certified physiatrist, provided June 24 and
October 24, 2012 reports diagnosing chronic pain syndrome, carpal tunnel syndrome, and ulnar
nerve entrapment of the right upper extremity. She prescribed medication.
Following a rehabilitation effort, appellant accepted a modified-duty assignment on
January 22, 2013 and returned to work that day. She stopped work a few hours into her shift.
Appellant received emergency room treatment on January 22, 2013 from Dr. Lisa K. Malloy, an
attending Board-certified family practitioner, who diagnosed brachial neuritis or radiculitis. A
January 22, 2013 venous Doppler study of the right upper extremity was normal. OWCP
accepted a recurrence of disability from January 23 to March 24, 2013 due to accepted bilateral
carpal tunnel syndrome, enesopathy of the right elbow, and other peripheral enesopathies.

2

By decision dated August 3, 2010, OWCP denied appellant’s claim for bilateral carpal tunnel syndrome, finding
that causal relationship was not established. Appellant requested a review of the written record. By decision dated
and finalized November 18, 2010, an OWCP hearing representative reversed OWCP’s August 3, 2010 decision and
accepted bilateral carpal tunnel syndrome as work related.
3

OWCP initially denied appellant’s claims for wage-loss compensation by decision dated October 27, 2011,
based on a lack of medical evidence. Appellant requested reconsideration. By decision dated December 28, 2011,
OWCP affirmed the October 27, 2011 decision. Appellant requested reconsideration on March 29, 2012. By
decision dated November 2, 2012, OWCP vacated the prior decisions and approved appellant’s claims for wage-loss
compensation.
4

In reports from August 16, 2010 to April 11, 2011, Dr. Richard L. Layfield, III, diagnosed a left wrist
sprain/strain. Appellant participated in physical therapy from January through September, 2011.
5

On October 5, 2011 the employing establishment offered appellant a modified-duty assignment. Appellant
refused the offer on October 5, 2011, as it required lifting 10 pounds, whereas her physicians limited her to lifting
five pounds. On October 24, 2011 Dr. Ducic opined that the offered position exceeded her physical limitations.
6

June 24, 2012 EMG and NCV studies showed bilateral carpal tunnel syndrome, right greater than left, mild left
cubital tunnel syndrome, and improvement in right median nerve conduction after decompression.

2

Dr. Naurang S. Gill, an attending neurologist, held appellant off work from February 6 to
March 31, 2013 due bilateral carpal tunnel syndrome and upper extremity neuropathies. He
ordered February 11, 2013 EMG and NCV studies, which demonstrated bilateral median nerve
entrapment consistent with carpal tunnel syndrome, right greater than left. Dr. Gill released
appellant to work as of March 25, 2013. In a March 25, 2013 report, Dr. Christopher G.
Scharenbrock, an attending physician Board-certified in emergency medicine, released appellant
to light duty as of March 26, 2013. He restricted lifting to five pounds through March 30, 2013.
Appellant stopped work on March 25, 2013 and remained off work through
April 8, 2013. The employing establishment noted that she was on full duty as of
March 25, 2013. Appellant worked 1 hour and 15 minutes, then stopped work, asserting that she
needed to seek emergency room treatment for right hand pain.
Dr. Ashish Shanbhag, an attending Board-certified physiatrist, released appellant to
sedentary duty on April 3, 2013. He submitted reports through July 19, 2013 diagnosing
complex regional pain syndrome in the median and ulnar nerve distributions, unspecified reflex
sympathetic dystrophy, carpal tunnel syndrome, ulnar nerve impairment, and chronic pain
syndrome of mixed etiology.
In an April 5, 2013 letter, the employing establishment advised appellant that there was
no sedentary work available within her medical restrictions.
In an April 9, 2013 letter, appellant requested that OWCP expand her claim to accept
reflex sympathetic dystrophy syndrome/complex regional pain syndrome of the right upper
extremity. She presented to a hospital emergency room on April 10, 2013. Nurses’ notes
indicate that appellant was seen by a pain clinic and that her medications were changed.
On April 24, 2013 appellant claimed a recurrence of disability from March 25 to
April 10, 2013 (Form CA-2a). She asserted that after she returned to full-duty work on
March 25, 2013 she had a flare-up of right carpal tunnel syndrome, ulnar nerve pain, swelling,
and color changes of the right hand. Appellant attributed the flare-up to repetitive hand and arm
movements while casing mail and lifting mail containers.7 On July 25, 2013 OWCP advised her
of the additional evidence needed to establish her claim, including a statement from her
physician explaining why the accepted conditions or other work factors would disable her for
work for the claimed period. It afforded appellant 30 days to submit such evidence.
June 14, 2013 x-rays, bone scans, and venous testing of the upper extremity were normal.
An OWCP medical adviser opined on July 6, 2013 that the test for reflex sympathetic dystrophy
syndrome/complex regional pain syndrome was normal.
Appellant submitted an August 12, 2013 statement, explaining that, while on regular duty
with a lifting restriction, she had a flare-up of bilateral hand and arm pain. She asserted that
repetitive arm motions at work caused nerve damage.

7

The employing establishment advised that appellant was offered limited-duty assignments, but she turned them
down.

3

On August 16, 2013 Dr. Malloy provided a history of injury and treatment, noting
appellant’s complaints of pain and paresthesias in her right hand and arm. She diagnosed
unspecified reflex sympathetic dystrophy, carpal tunnel syndrome, ulnar nerve impairment, and
chronic pain syndrome of mixed etiology. Dr. Malloy prescribed medication.
By decision dated September 13, 2013, OWCP denied appellant’s claim for a recurrence
of disability from March 25 to April 10, 2013, finding that the medical evidence of record was
insufficient to establish that the accepted conditions disabled her from work on the claimed
dates. It further found that she had not established reflex sympathetic dystrophy syndrome or
complex regional pain syndrome due to the accepted conditions.
Counsel requested a telephonic hearing, held March 19, 2014. At the hearing, appellant
contended that she was disabled for work from March 25 to April 10, 2013 due to a combination
of accepted carpal tunnel syndrome and enesopathy, and reflex sympathetic dystrophy syndrome.
She asserted that she sustained reflex sympathetic dystrophy syndrome as a consequence of the
accepted bilateral conditions. Appellant submitted additional evidence.
Dr. Malloy provided reports from September 26, 2013 to April 17, 2014, diagnosed
neuritis, and complex regional pain syndrome in the ulnar and median nerve distributions of the
right forearm, with “minimal symptomatology.”8 In an October 15, 2013 report, Dr. Ducic
diagnosed “right arm pain.”
In a June 3, 2014 decision, an OWCP hearing representative affirmed the September 13,
2013 decision, finding that the additional medical evidence submitted was insufficiently
rationalized to expand the claim to include complex regional pain syndrome/reflex sympathetic
dystrophy consequential to the accepted bilateral carpal tunnel syndrome, and upper extremity
enesopathies. The hearing representative further found that the medical evidence of record did
not establish that disability from work on March 25 and April 10, 2013, either due to the
accepted conditions or reflex sympathetic dystrophy.
Counsel requested reconsideration by letter dated July 19, 2014. He submitted additional
evidence. Dr. Malloy noted in a September 8, 2014 report that appellant was formally diagnosed
with reflex sympathetic dystrophy/complex regional pain syndrome, and required treatment by a
neurologist.
Dr. Jason S. Wong, an attending neurologist, provided a July 16, 2014 report relating a
history of injury and treatment. He noted appellant’s complaints of numbness and paresthesias
in the right upper extremity of unknown etiology. Dr. Wong prescribed a transcutaneous
electrical stimulation (TENS) unit. Also submitted were occupational therapy notes.

8

On February 28, 2014 appellant claimed a schedule award. Counsel obtained an impairment rating from
Dr. Stuart J. Goodman, a Board-certified neurologist, who opined on February 24, 2014 that appellant had attained
maximum medical improvement. He assessed 18 percent impairment of the right upper extremity according to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment, based on
ulnar and median nerve deficits.

4

By decision dated October 16, 2014, OWCP denied modification of the June 3, 2014
decision, finding that appellant had not submitted sufficient medical evidence to establish
disability for work from March 25 to April 10, 2013 due to consequence of the accepted
conditions.9
In a September 8, 2015 letter, counsel again requested reconsideration. He submitted
March 28 and June 26, 2014 reports from Dr. Wong diagnosing chronic nerve damage of the
right arm and holding appellant off work. On January 6, 2015 Dr. Wong opined that complex
regional pain syndrome was “the most likely cause” of her right arm symptoms. In a July 11,
2015 report, he diagnosed type 1 complex regional pain syndrome caused by “continuous,
repetitive activity using her hands while working for [the employing establishment] for years.”
The report contains a preprinted paragraph attributing the diagnosed condition named on the
form to the work activities described. Dr. Wong did not provide his own analysis of causal
relationship.10
By decision dated December 3, 2015, OWCP denied modification of the October 16,
2014 decision, finding that appellant had failed to establish a causal relationship between reflex
sympathetic dystrophy syndrome and the accepted upper extremity conditions. It further found
that she had not submitted sufficient medical evidence to establish disability for work from
March 25 to April 10, 2013 due to accepted right upper extremity conditions.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”11 This term also means an
inability to work when a light-duty 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 reductionin-force), or when the physical requirements of such an assignment are altered so that they
exceed his or her established physical limitations.12
When an appellant claims a recurrence of disability due to an accepted employment-related
injury, he or she has the burden of establishing by the weight of reliable, probative, and substantial
evidence that the recurrence of disability is causally related to the original injury. This burden
includes the necessity of furnishing evidence from a qualified physician, who, on the basis of a
9

In a November 14, 2014 letter, appellant advised OWCP that she began a seasonal retail job at $9.00 an hour.

10

Dr. Robert Macht, an attending general surgeon, submitted a January 13, 2015 impairment rating pursuant to
appellant’s schedule award claim. He did not diagnose complex regional pain syndrome or address causal
relationship.
11

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.b
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
12

Id. at § 10.5(x).

5

complete and accurate factual and medical history, concludes that the condition is causally related
to the employment injury. Moreover, sound medical reasoning must support the physician’s
conclusion.13 An award of compensation may not be based on surmise, conjecture or speculation
or on appellant’s unsupported belief of causal relation.14
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, enesopathy of
the right elbow, and other peripheral enesopathies. Appellant was off work from August 16,
2010 through January 14, 2012 and thereafter. Following a brief return to work in January 2013,
she remained off work through March 25, 2013, when she returned to full-duty work with a
temporary lifting limitation through March 30, 2013. Appellant again stopped work on
March 25, 2013 and claimed a recurrence of disability through April 10, 2013. The employing
establishment advised that it had made available light-duty work.
Appellant has the burden of providing sufficient evidence, including rationalized medical
evidence, to establish the causal relationship asserted between the accepted right upper extremity
conditions, and a spontaneous worsening of her condition as claimed.15 However, she attributed
a flare-up of right arm and hand symptoms to casing mail and lifting containers of mail at work
on March 25, 2013. Appellant thus identified an intervening cause, breaking the chain of
causation from the original injury.16 This effectively negates her claim for a recurrence of
disability.
Additionally, appellant’s physicians did not opine that she was disabled from work for
the claimed period. Dr. Gill, an attending neurologist, released appellant to work as of
March 25, 2013. Dr. Scharenbrock, an attending physician Board-certified in emergency
medicine, found appellant able to work as of March 26, 2013. Dr. Shanbhag found appellant
able to perform sedentary duty as of April 3, 2015, but did not explain the reasoning behind this
limitation.
OWCP advised appellant in a July 25, 2013 letter of the type of evidence needed to
establish her claim for a recurrence of disability. As appellant did not submit such evidence, it
properly issued its December 3, 2015 decision denying her recurrence claim.
On appeal counsel asserts that OWCP’s December 3, 2015 decision was not rationalized
and did not explain how the decision was reached. He contends that it appears that OWCP did
not consider any evidence appellant submitted. As set forth above, appellant did not submit
13

Ricky S. Storms, 52 ECAB 349 (2001).

14

Alfredo Rodriguez, 47 ECAB 437 (1996).

15

Supra note 13.

16

See Carlos A. Marrero, 50 ECAB 117 (1998) (the Board found that the claimant’s use of an exercise machine
constituted an intervening cause of appellant’s disability and thus OWCP properly denied appellant’s claim for
recurrence of disability); Clement Jay After Buffalo, 45 ECAB 707 (1994) (the Board found that the claimant’s knee
injury sustained while playing basketball broke the legal chain of causation from an accepted knee injury sustained
in the performance of his duties as a firefighter).

6

sufficient rationalized medical evidence to establish that she was disabled for work from
March 25 to April 10, 2013.
LEGAL PRECEDENT -- ISSUE 2
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
The Board has held that, once the work-connected character of any injury has been established,
the subsequent progression of that condition remains compensable so long as the worsening is
not shown to have been produced by an independent nonindustrial cause and so long as it is clear
that the real operative factor is the progression of the compensable injury, associated with an
exertion that in itself would not be unreasonable under the circumstances.17
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical reasoning explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.18
ANALYSIS -- ISSUE 2
Appellant claimed that she sustained reflex sympathetic dystrophy syndrome/complex
regional pain syndrome of the right upper extremity, consequential to carpal tunnel syndrome
and enesopathies. OWCP denied the claim, finding that the medical evidence did not contain
sufficient rationale supporting a causal relationship between work factors and the claimed
condition.
In support of her claim, appellant provided reports dated from April to July 2013 from
Dr. Shanbhag, an attending Board-certified physiatrist, who diagnosed complex regional pain
syndrome of the right upper extremity. However, he did not address whether the accepted
conditions or other work factors caused the claimed condition. Therefore, Dr. Shanbhag’s
opinion is insufficient to meet appellant’s burden of proof.19
Dr. Malloy, an attending Board-certified family practitioner, initially diagnosed brachial
neuritis on January 22, 2013, then changed her diagnosis to reflex sympathetic dystrophy from

17

Clement Jay After Buffalo, id.

18

Charles W. Downey, 54 ECAB 421 (2003).

19

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

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August 16, 2013 through September 8, 2014. The equivocal aspect of this opinion diminishes its
probative quality.20
Dr. Wong, an attending neurologist, opined on January 6, 2015 that complex regional
pain syndrome was the “most likely cause” of appellant’s right arm pain and paresthesias. He
opined on July 11, 2015 that repetitive upper extremity motions at work caused complex regional
pain syndrome. Dr. Wong’s report contains a preprinted paragraph attributing the claimed
condition to work factors. However, he did not offer an independent explanation supporting
causal relationship. In the absence of such rationale, Dr. Wong’s report is insufficient to meet
appellant’s burden of proof.21
The Board finds that appellant has not submitted sufficient rationalized medical evidence
supporting causal relationship between the claimed complex regional pain syndrome/reflex
sympathetic dystrophy and the accepted bilateral carpal tunnel syndrome or upper extremity
enesopathies. OWCP’s December 3, 2015 decision denying the claim is therefore proper under
the law and facts of this case.
On appeal, counsel asserts that OWCP’s December 3, 2015 decision was not rationalized
and did not explain how the decision was reached. He contends that it appears that OWCP did
not consider any evidence appellant submitted. As set forth above, the Board found that
appellant failed to submit sufficient rationalized medical evidence to establish a causal
relationship between the claimed complex regional pain syndrome and the accepted conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability from March 25 to April 10, 2013 due to accepted right upper extremity conditions.
The Board further finds that she has not met her burden of proof to establish reflex sympathetic
dystrophy syndrome or complex regional pain syndrome of the right upper extremity,
consequential to accepted upper extremity conditions.

20

D.D., 57 ECAB 734 (2006).

21

Supra note 19.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 3, 2015 is affirmed.
Issued: July 5, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Terrell, TX, Employer
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___________________________________________ )
J.H., Appellant

Docket No. 08-2019
Issued: January 21, 2009

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

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 July 16, 2008 appellant filed a timely appeal of a decision of the Office of Workers’
Compensation Programs dated June 26, 2008 which denied appellant’s claim for compensation
as untimely filed. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this merits of the case.
ISSUE
The issue is whether appellant’s claim for compensation was filed within the time
limitations set forth in 5 U.S.C. § 8122.
FACTUAL HISTORY
On October 29, 2007 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim for an injury to his right knee. He alleged that on or about August 1985 he stepped
in a hole and twisted his right leg and felt pain in his right knee. Appellant alleged that he first
became aware of his employment-related condition in August 1985. George Givens, a
supervisor, controverted the claim as untimely filed. He noted that appellant indicated that it was

a traumatic injury which occurred in 1985 and it was never reported. Mr. Givens also alleged
that he could “not verify that [appellant] was working when accident occurred.”
Appellant also submitted a statement alleging that he stepped in a hole that was covered
in grass. He also stated that the next day, he went to a physician and underwent surgery to the
right knee two days later. Appellant claimed further that his right knee had worsened and he was
in need of a total knee replacement.
By decision dated November 20, 2007, the Office denied the claim on the grounds that it
was not timely filed under 5 U.S.C. § 8122. It noted that the evidence did not support a finding
that appellant’s immediate supervisor had actual knowledge within 30 days of the injury.
On March 25, 2008 the Office received appellant’s request for reconsideration and by
decision dated June 26, 2008, it denied modification of its previous decision.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.1 Section 8122 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.2 Compensation for disability or death may not be allowed if a claim is not filed
within that time unless:
“(1) [T]he 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) [W]ritten notice of injury or death as specified in section 8119 was given
within 30 days.”3
In cases involving a traumatic injury, the time limitation commences to run on the date of
the incident even though the employee may not be aware of the seriousness or ultimate
consequences of the injury or the nature of the injury is not diagnosed until sometime later.4 For
actual knowledge of a supervisor to be regarded as timely filing, an employee must show not
only that the immediate superior knew that he was injured, but also knew or reasonably should
have known that it was an on-the-job injury.5
Even if an original claim for compensation for disability or death is not filed within three
years after the injury or death, compensation for disability or death may be allowed if written
1

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

2

5 U.S.C. § 8122.

3

Id. at 8122(a).

4

See Paul S. Devlin, 39 ECAB 715 (1988); Kenneth W. Beard, 32 ECAB 210 (1980).

5

Duet Brinson, 52 ECAB 168 (2000).

2

notice of injury or death, as specified in section 8119, was given within 30 days. 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 for and contain the address of the individual giving the
notice.6 Actual knowledge and written notice of injury under section 8119 serve to satisfy the
statutory period for filing an original claim for compensation.7
ANALYSIS
The record establishes that appellant did not file his claim for compensation within the
three-year statutory limitation. He alleged that he sustained an on-the-job injury on
August 1, 1985.8 Appellant alleged that he stepped in a hole and twisted his right leg and felt
pain in his right knee. Pursuant to section 8122(a) of the Act, he had three years from the date of
his alleged injury to timely file a claim. However, appellant did not file his claim until
October 29, 2007, more than 20 years later. Accordingly, the Board finds that his claim was not
timely filed.
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 within 30 days. However, he has not satisfied
either of these provisions. The record reflects that Mr. Givens, a supervisor, controverted the
claim as untimely filed. He noted that appellant indicated that it was a traumatic injury which
purportedly occurred in 1985 and it was not reported. Mr. Givens also indicated that he could
“not verify that [appellant] was working when accident occurred.” This statement does not
support that appellant’s actual supervisor had actual knowledge of a work-related injury within
30 days. The Board notes that, for actual knowledge of a supervisor to be regarded as timely
filing, appellant must show not only that the immediate superior knew that he was injured, but
also knew or reasonably should have known that it was an on-the-job injury.9 Appellant has not
shown that Mr. Givens or any supervisor was aware of his condition and that he knew or
reasonably should have known that his injury was work related. He also has not established that
he submitted written notice to the employing establishment within 30 days of his claimed injury.
The employing establishment indicated that appellant did not submit either a traumatic injury
claim or any documentation concerning medical treatment for an on-the-job injury within 30
days of his claimed injury. Appellant has not presented any evidence indicating that he did, in
fact, provide written notice to the employing establishment within 30 days of his claimed on-thejob injury. Accordingly, the Board finds that he has not established that his claim was timely
6

Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

The Board notes that appellant also indicated August 1, 1995 in his statement, which appears to be a
typographical error. In any event, either date would be considered untimely.
9

David R. Morey, 55 ECAB 642 (2004).

3

filed by showing either that his supervisor knew or reasonably should have known that he
sustained an on-the-job injury or that he provided written notice to the employing establishment
within 30 days.
On appeal, appellant alleged that his original surgery was paid for by “workers’ comp.”
He alleged that his knee replacement was work related and should also be covered. However, as
noted above, appellant has not established that his claim was timely filed and thus, compensation
for disability or a knee replacement may not be allowed.
For these reasons, appellant’s claim is not timely and is barred by the applicable time
limitation provisions of the Act.
CONCLUSION
Appellant’s claim is barred by the applicable time limitation provisions of the Act.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE ARMY, GUTHRIE
CLINIC, Fort Drum, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-503
Issued: June 12, 2015

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 January 7, 2015 appellant filed a timely appeal from a December 17, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established permanent impairment of the right upper
extremity.
FACTUAL HISTORY
On July 9, 2012 appellant, then a 42-year-old nursing assistant, was injured when she
slipped and fell on the floor at work. Her claim was initially accepted for cervical radiculopathy
and later expanded to include displacement of cervical intervertebral disc without myelopathy at

1

5 U.S.C. § 8101 et seq.

C4-5.2 Appellant stopped work on July 9, 2012 and returned to work on August 13, 2012. Later,
she stopped work again on April 15, 2013 and returned on September 9, 2013. Appellant
received appropriate continuation of pay and wage-loss compensation.
On September 12, 2013 appellant claimed a schedule award and provided a
September 24, 2013 report from Dr. Baird who advised that appellant complained of numbness
and tingling of the right upper extremity that radiated down to her neck and hand. Dr. Baird
noted that electrodiagnostic studies performed in June 2013 revealed chronic right C5-6
radiculopathy. On physical examination he found decreased sensation in the back and volar
aspect of the thumb, index finger and palm, no peripheral edema, and tenderness with palpation
at the base of the cervical spine right of midline. Dr. Baird reported an impression of right arm
cervical radiculopathy likely due to adjacent level degenerative changes. He reported that
appellant had a significant limitation use of the right upper extremity secondary to her discomfort
and sensory defects. Dr. Baird opined that appellant had 60 percent loss of the use of the right
upper extremity compared to what she had prior to the work incident.
By letter dated October 23, 2013, OWCP advised appellant that the medical evidence was
insufficient to establish that she sustained a permanent impairment to the right upper extremity
because she failed to submit an impairment rating in conformance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment. OWCP
requested that she obtain such a report from her treating physician.
Appellant submitted letters informing OWCP that she was unable to find a physician
willing to perform an impairment rating in accordance with the sixth edition of the A.M.A.,
Guides. By letter dated November 7, 2013, she asked that OWCP schedule an appointment for
an impairment rating.
On December 20, 2013 OWCP referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Sury Putcha, a Board-certified orthopedic surgeon, for an
impairment evaluation. In a January 8, 2014 report, Dr. Putcha noted appellant’s history and
reviewed her medical record. He advised that in 2008 appellant had an anterior cervical
discectomy and fusion at C5-6 and placement of plate and screws for disc degeneration, disc
protrusion, and right arm pain. On physical examination Dr. Putcha noted that appellant’s neck
movements were somewhat restricted, she was able to turn right and left to 60 degrees, extend 45
degrees, and lateral flex about 20 degrees, and that she did not display muscle spasm in her
cervical spine within those range of movements. He further noted that the right arm was
generally weaker than the left, specifically her right hand’s grip strength was 35 pounds
compared to 75 pounds on the left. Dr. Putcha advised that appellant’s fine motor movements
were intact, there was no thenar or hypothenar atrophy, she complained of numbness in the
thumb and index finger, and her push-pull strength of the right arm was limited secondary to
pain. He stated that findings from a 2013 cervical spine magnetic resonance imaging (MRI) scan
showed mild disc protrusions on the right at C4-5 and C6-7 but no nerve compression.
2

On July 12, 2012 Dr. Bruce Baird, a Board-certified orthopedic surgeon, advised that appellant had neck pain
radiating to the right arm after an injury at work on July 9, 2012. He advised that a computerized tomography scan
of the cervical spine did not show a fracture. Dr. Baird noted that appellant had a C5-6 anterior cervical
decompression and fusion in 2008. Cervical spine x-rays showed no change compared to 2009 films and indicated
that there was no failure of the plate hardware or any significant adjacent level degenerative changes. Dr. Baird
diagnosed cervical sprain and potential right arm cervical radiculopathy.

2

Dr. Putcha diagnosed soft tissue injury to the neck resulting in radicular symptoms to the right
upper extremity without conclusive evidence of nerve root compressions at C4-5 or C6-7. He
opined that appellant’s disc bulges of C4-5 and C6-7 levels were preexisting in nature secondary
to cervical degenerative disc disease and her preexisting fusion of C5-6 level. Dr. Putcha
advised that appellant reached maximum medical improvement on July 8, 2013. He further
advised that using the sixth edition of the A.M.A., Guides and The Guides Newsletter there was
no nerve root related disability attributable to the July 9, 2012 injury.
On March 4, 2014 an OWCP medical adviser reviewed Dr. Putcha’s report and agreed
that there was no permanent impairment to the right upper extremity due to the July 9, 2012
work injury. He explained that, because Dr. Putcha could not find any nerve root involvement
relating to the work incident, he could not use the peripheral nerve impairment tables. The
medical adviser noted that there was a difference of opinion between Dr. Putcha’s report and an
earlier second opinion report;3 however, he explained that the impairment rating would be the
same because the earlier report also failed to find any objective neuropathy on examination.
By decision dated March 28, 2014, OWCP found that medical evidence was insufficient
to establish that appellant sustained a permanent impairment to a scheduled member due to the
accepted work injury.
By letter dated April 9, 2014, appellant requested an oral hearing. In an April 3, 2014
statement, she advised that although she had a preexisting cervical condition that required
surgery in 2008, appellant was free from pain and residuals until her July 9, 2012 work injury.
She also alleged that during her examination, Dr. Putcha’s conduct was inappropriate and
harassing.
On November 5, 2014 an oral hearing took place. Appellant reiterated that Dr. Putcha
was inappropriate during her examination and noted that after the examination she reported his
conduct to the company that scheduled the appointment. She also noted that Dr. Putcha told her
that she had a 10 percent impairment of the right upper extremity using Table 13-11 on page 335
of the A.M.A., Guides. The hearing representative advised appellant that Table 13-11 dealt with
whole-person impairment which could not be used for impairment ratings under FECA. The
hearing representative also advised appellant that if her attending physician disagreed with
Dr. Putcha’s rating, he could submit a report in writing.
By decision dated December 17, 2014, an OWCP hearing representative affirmed the
denial of a schedule award.

3

In a May 20, 2013 report, Dr. Gregory Shankman, a Board-certified orthopedic surgeon and OWCP referral
physician with respect to whether appellant had work-related residuals, diagnosed an employment-related cervical
herniated disc. He indicated that appellant had good strength in the muscle groups. Appellant had intact radial,
median, and ulnar nerve function of both hands with good sensation to light touch and pinprick. Dr. Shankman was
not asked to address permanent impairment.

3

LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.4
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.5 FECA,
however, does not specify the manner by which the percentage loss of a member, function, or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.6 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.11 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.12

4

Veronica Williams, 56 ECAB 367 (2005).

5

5 U.S.C. § 8107.

6

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

7

20 C.F.R. § 10.404.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
9

Pamela J. Darling, 49 ECAB 286 (1998).

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

L.J., Docket No. 10-1263 (issued March 3, 2011).

12

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

4

ANALYSIS
OWCP accepted the claim for cervical radiculopathy and displacement of cervical
intervertebral disc without myelopathy. The Board finds that OWCP properly determined that
appellant did not sustain a permanent impairment of the right upper extremity related to the
July 9, 2012 work incident.
Appellant submitted a September 24, 2013 report from Dr. Baird, who noted findings and
reported an impression of right arm cervical radiculopathy likely due to adjacent level
degenerative changes. Dr. Baird stated that appellant had a significant limitation to use of the
right arm secondary to her discomfort and sensory defects. He opined that she had 60 percent
loss of the use of the right arm compared to what she had prior to the work injury. This report is
of limited probative value as Dr. Baird did not address permanent impairment pursuant to the
A.M.A., Guides or The Guides Newsletter. The Board has held that schedule awards are to be
based on the A.M.A., Guides. An estimate of permanent impairment is irrelevant and not
probative where it is not based on the A.M.A., Guides.13
Thereafter, OWCP referred her to Dr. Putcha for an impairment evaluation. On
January 8, 2014 Dr. Putcha referenced the A.M.A., Guides and The Guides Newsletter, but found
no basis on which to attribute permanent impairment to appellant’s accepted conditions. On
examination Dr. Putcha found that appellant’s neck movements were somewhat restricted, noted
neck ranges of motion, and advised that she did not display acute muscle spasm in her cervical
spine within those range of movements. He further noted that the right arm’s strength was
generally weaker that the left. Dr. Putcha advised that her fine motor movements were intact,
there was no thenar or hypothenar atrophy, she complained of numbness in the thumb and index
finger, and her push-pull strength of the right arm was limited secondary to pain. He noted that
appellant reported right arm radicular symptoms, but he advised that there was no conclusive
evidence of nerve root compression at C4-5 and C6-7, noting findings from a 2013 MRI scan
study. Dr. Putcha further explained that her problems at C5-6 were due to her preexisting
condition. He concluded that he could find no nerve root related disability that was attributable
to the July 9, 2012 injury.
In a March 4, 2014 report, an OWCP medical adviser concurred with Dr. Putcha’s
opinion that there was no objective basis on which to rate impairment for the right arm
attributable to the July 9, 2012 injury.
The Board finds that the weight of the medical evidence rests with Dr. Putcha and OWCP
medical adviser. Dr. Putcha’s report provided an accurate factual and medical history and
provided detailed findings on examination to support his opinion. OWCP medical adviser
agreed with Dr. Putcha finding that there was no medical evidence of record that provided
findings to support permanent impairment of the right arm under the A.M.A., Guides. The
Board finds that there is no probative medical evidence of record, in conformance with the sixth
edition of the A.M.A., Guides, establishing that appellant has a permanent impairment of the
right upper extremity or other scheduled body member.

13

Shalanya Ellison, 56 ECAB 150, 154 (2004).

5

On appeal appellant alleged misconduct by Dr. Putcha. However, she did not provide
any corroborative evidence to support her allegations. The Board has held that it is a claimant’s
burden of proof to support misconduct allegations.14 Appellant also argued that OWCP should
consider her constant discomfort and the impact that the accepted conditions will have on her life
henceforth. However, the Board has held that factors such as limitations on daily activities have
no bearing on the calculation of a schedule award.15
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established permanent impairment to the right
upper extremity due to her accepted employment condition.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2015
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

14

Geraldine Foster, 54 ECAB 435 (2003).

15

Kimberly M. Held, 56 ECAB 670 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF THE ARMY, RESERVES
COMMAND, Fort McCoy, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Frederick M. Neiswender, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0304
Issued: November 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 27, 2017 appellant, through counsel, filed a timely appeal from an
August 30, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On December 9, 2015 appellant, then a 55-year-old civilian unit administrator technician
and a staff sergeant (SSG) with the U.S. Army Reserves, filed a traumatic injury claim (Form
CA-1)3 alleging that she sustained an emotional condition on or about March 18, 2015 when
Captain R.P., her military unit commander4 ordered that she undergo a psychiatric evaluation in
the performance of duty. She alleged that she was diagnosed with a psychiatric condition which
led to workplace discrimination and the termination of her civilian military employment.
In a November 11, 2015 sworn statement, appellant indicated that when she accepted her
civilian position in December 2012, the Labor Management Employee Regulations (LMER)
required that the unit administrator also be a member of the same military unit. She noted that this
requirement changed in 2014. Appellant alleged that she was subjected to a personally motivated
attack and privacy intrusion from Captain R.P., when he abused his military authority by ordering
her to undergo a Command Directed Mental Health Examination (CDMHE). She opined that the
Mental Health Review Board erroneously determined that she had a psychiatric condition.
Appellant claimed that she was subjected to discrimination and unfair treatment in her civilian
position because of the military finding that she had a psychiatric condition. This included being
denied a promotion, and ultimately being terminated from her civilian unit administrator technician
position.
Appellant described the timeline of events as follows: On February 4, 2015 Lieutenant
K.W., Command Executive Officer and second-line civilian supervisor, stated that there was an
impending reduction of force affecting 20 positions. On February 17, 2015 appellant was directed
by Second Lieutenant P.S. to not speak to members of the 915th unit while in her civilian
employment.5 On February 20, 2015 she was referred for consideration of promotion to a GS-7
position under Captain R.P.
From February 21 to March 15, 2015, she was assigned to attend annual military training
at Fort Hunter-Liggett in California. When she arrived at the military training, Second Lieutenant
P.S. attempted to have her sign civilian performance counseling and made vague allegations that
she had not adequately performed her duties as a civilian unit administrator technician. On
February 26, 2015 she was examined at a local hospital emergency room and deemed healthy. On
February 28, 2015 appellant again refused to sign Second Lieutenant P.S.’ request for counseling.
3

The Board notes that in its initial denial of appellant’s claim on June 2, 2016, OWCP informed appellant that her
claim was being developed and analyzed as an occupational disease claim.
4

As the military unit commander, Captain R.P. was the unit administrator and senior rater for appellant’s civilian
position.
5
On February 20, 2015 Second Lieutenant P.S. counseled appellant for failure to follow and utilize the chain of
command in her capacity as a staff sergeant in the 298th SMC.

2

Within hours, Lieutenant P.S. was advised that appellant would be returning to Pennsylvania, her
home station. The next day she received a copy of a sick call slip from Captain T.S. which
indicated that appellant was “having mental issues and was unable to perform as a soldier.”
Captain T.S. recommended that the Command order a CDMHE.6 On March 7, 2015 Captain R.P
referred her to a CDMHE.7 On March 13, 2015 R.S., appellant’s civilian supervisor at the 316th,
commenced a request for orders ordering her to attend a CDMHE.8 On March 18, 2015, under
official military orders, appellant was sent to Keller Army Hospital in West Point, New York for
a medical evaluation. She was diagnosed with a delusional disorder and a military medical profile
was created. After 16 days, appellant returned to Pennsylvania.
On April 8, 2015 local police were directed to detain her at the request of Captain R.P, on
the basis that she had “mental health issues” and had made threats to local hospital personnel.
Appellant alleged that local police were also called by the Army Reserve on two other occasions
based complaints of “mental health issues.” On July 1, 2015 she was removed from the workplace
and placed on administrative leave, subject to the findings of a misconduct investigation. On
November 2, 2015 appellant was separated from civilian federal employment based on conduct
unbecoming to a solider.
Evidence submitted with appellant’s claim included: a May 12, 2015 developmental
counseling form from Captain R.P. pertaining to the release of sensitive military information;
additional statements/graphics from appellant alleging a conflict of interest and retaliation; an
August 27, 2015 complaint against Dr. Hadley Osran, a military psychiatrist; and a November 24,
2015 report from Daisi Eyerly, a licensed social worker, which diagnosed appellant with acute
stress disorder, depression, and generalized anxiety disorder due to the military’s persecution of
her character and loss of livelihood.
In a December 31, 2015 development letter, OWCP advised appellant of the deficiencies
in her claim. It requested additional factual and medical evidence and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to submit the requested information.
Evidence relating to appellant’s removal from annual training at Fort Hunter-Liggett due
to behavior issues, and referral to and attendance at a March 18, 2015 CDMHE was received.
Appellant also submitted narrative statements pertaining to counseling she received in a military
capacity, her treatment by U.S. Army physicians, and allegedly falsified or improperly altered
military medical records.
In a March 10, 2015 e-mail, Lieutenant K.M., appellant’s second-level civilian supervisor,
advised appellant that, as a civilian employee, she must either report to work or be on an approved
leave of absence or she would be considered absent without leave (AWOL).

6

The file contains a copy of the March 1, 2015 sick slip.

7

On March 6, 2015 Captain R.P. referred appellant for a mental health evaluation due to her refusal to follow her
chain of command and disobeying direct orders to do so during annual training. Other reasons were cited.
8
R.S. is also K.M.’s supervisor. Both R.S. and K.M. are appellant’s civilian supervisors. A copy of the March 13,
2015 Request for Orders signed by R.S. is of record.

3

In a March 20, 2015 interview, Captain R.P. stated that he was aware that appellant was
referred for the GS-7 position, but he chose not to interview appellant for the position.
Captain R.P. also stated that he was within his rights to inform civilian supervisor Lieutenant K.M.
of appellant’s appointment under the Military Command Exception and Disclosure Personal
Health Information of Armed Forces Personnel and denied that her privacy rights were violated.
On April 8, 2015 the Pennsylvania Police Department conducted a welfare check of
appellant.
On April 15, 2015 Captain R.P. counseled appellant for failure to comply with his
March 26, 2015 policy for civilian employees for daily back-briefs. He noted that while appellant
had acknowledged receipt of his new policy on March 27, 2015, she was on leave. As this was
appellant’s first day back, he advised that the counseling statement was a reminder of his policy.
On April 21, 2015 the Inspector General (IG) referred appellant’s complaint of
whistleblower reprisal to the Secretary of the Army IG.9
In a May 12, 2015 letter, civilian supervisor, Lieutenant K.M. stated that appellant was
ordered home early on March 3, 2015 from training at Fort Hunter-Liggett due to behavior issues.
The decision to have appellant return to Pennsylvania was made by Captains R.S. and R.P.
Appellant was then ordered to attend a medical evaluation at West Point, New York.
In a May 27, 2015 letter, Colonel L.D., commanding officer at West Point, barred appellant
from West Point because she continued to “harass and alarm” health care providers at Keller
Hospital.
In a June 29, 2015 statement, appellant alleged that a Command Sergeant-Major of the
Army Reserve made false reports to the local police that she was making threats.
In a June 30, 2015 memorandum, Lieutenant Colonel K.W., 316th Executive Officer,
placed appellant on administrative leave (paid nonduty) status. Appellant was not to enter the
employing establishment facility or any other facility controlled by the 316th Expeditionary
Sustainment Command pending an investigation into potential misconduct.
In a July 10, 2015 e-mail, civilian supervisor, Lieutenant K.M. stated that appellant was
not interviewed for the GS-7 position based on her current performance with the unit. He noted
that the selection process was handled by Captain R.P. and himself. Evidence pertaining to the
position included: copies of another individual’s application for the position; a March 11, 2015
listing of recommended and nonrecommended people; and a February 12, 2015 e-mail from
appellant objecting to the selection of another service member for the position. An undated partial
investigation report noted that both Captain R.P. and Lieutenant K.M had indicated that appellant
was not considered for the job as she could not handle any more workload.
9

On April 26, 2015 appellant filed a claim with the Merit Systems Protection Board (MSPB) alleging that
Captain R.P. abused his authority and created a hostile environment. She alleged that she had to take time off for
stress and was denied leave in effort to defend herself. Appellant also alleged that she was being forced out of her
military and dual status positions.

4

In a July 24, 2015 e-mail, Lieutenant Colonel J.K. stated that the administrative actions
taken to date were due to the initial diagnosis from appellant’s CDMHE and her misconduct during
her attempts to compel the Command to vacate the diagnosis. Lieutenant Colonel J.K.
recommended that appellant seek treatment instead of making false accusations and engaging in
misconduct -- both punishable under the Uniform Code of Military Justice (UCMJ).
On October 1, 2015 Lieutenant Colonel J.K. recommended that appellant be separated
from the U.S. Army Reserve under “other than honorable conditions.”
In an October 1, 2015 statement, civilian supervisor, Lieutenant K.M. denied any role in
the decision to place appellant on administrative leave, and ban her from all 316th ESC buildings.
He opined that it was done for security concerns.
In an October 5, 2015 statement, Lieutenant Colonel K.W. indicated that from March 20
until May/June, 2015, appellant sent extensive amounts of harassing text messages, e-mails, and
voicemails to various employees which were often extremely accusatory and harassing, bordering
on threatening in nature. He indicated that he made the decision to place her on administrative
leave as he wanted to limit her access to the building and computers as she was displaying erratic
behavior and sending inappropriate e-mails. Lieutenant Colonel K.W. stated that neither Captain
R.P. nor Lieutenant K.M. had played any role in the decision to place appellant on administrative
leave.
On November 2, 2015 appellant requested that the Army remove an investigating officer
for the complaint filed with the IG, alleging a conflict of interest.
In a January 9, 2015 report, Yvonne B. Reedy, Ph.D., a licensed psychologist, diagnosed
post-traumatic stress disorder. She indicated that appellant was forced to a CDMHE on March 18,
2015 which was then used to fire her and push her out of the military.
By decision dated June 1, 2016, OWCP denied appellant’s emotional condition claim as
there were no compensable employment factors. It found that while it was accepted that appellant
was removed from annual training at Fort Hunter-Liggett in California and sent for a CDMHE,
which she attended on March 18, 2015 in West Point, NY, this was not a compensable factor of
employment. It also found that there was no evidence that management had blocked appellant
from competing for the GS-7 position/promotion within her civilian unit.
On June 30, 2016 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
Prior to the hearing, appellant submitted a November 10, 2015 report from Lieutenant J.F.,
a surgeon, which found that appellant was in the line of duty (active duty at annual training) when
she developed delusional disorder, persecutory in nature, and adjustment disorder with anxiety and
depressed mood, which Dr. Osman, a military psychiatrist, had diagnosed. Lieutenant J.F., noted
that appellant did not have a psychiatric diagnosis prior to the events from mid-February through
March 2015 at Fort Hunter-Liggett. He noted that her symptoms had escalated when she was
returned from active duty and was sent for a CDMHE.

5

A telephonic hearing was held on February 6, 2017. Appellant testified that Lieutenant
R.S. was her immediate civilian supervisor, followed by Captains R.P. and R.M. Appellant stated
that Lieutenant R.S. as well as Captains R.P. and R.S. had arranged for her medical evaluation at
West Point and subsequently ordered her banned from the Clearfield Army Reserve facility. She
alleged that the CDMHE was ordered as retaliation for her complaints about the Army’s plans to
reduce the number of civilian technicians in the Army Reserves and not being selected for the GS7 position. She also alleged that Army Reserve officers improperly called the police to her home
based on false accusations of misconduct. Appellant stated that a hearing was pending for the
Equal Employment Opportunity (EEO) complaints filed in both her civilian and military positions.
She also had filed an IG complaint of whistleblower/reprisal against Captains R.P. and R.S. and
Lieutenant R.S. for harassment, which the IG closed, but she wished to be reopened. Appellant
also requested that an investigating officer be removed due to a conflict of interest as he had
harassed her. She testified that she was terminated from civilian employment in October 2015 and
that the Army was trying to remove her from the Army Reserve. Counsel indicated that appellant
had filed an appeal of the medical review board findings.
In a February 22, 2017 statement, appellant argued that she was improperly found unfit for
military service based on false accusations by Army Reserve members and civilian supervisors.
She repeated her allegations as to the medical review board, the actions by her military and civilian
supervisors, and the GS-7 selection process.
Additional evidence received included: an April 8, 2015 report from the Dubois City
police, which noted that a welfare check was conducted on appellant. It indicated that the matter
was cleared and closed.
On April 26, 2015 appellant appealed to the MSPB regarding the order to be examined by
the Army medical review board.
In a May 4, 2015 letter, appellant complained regarding her examination and treatment at
Keller Army Hospital.
In a June 29, 2015 report, Officer M.D. of the Dubois Police Department stated that a
Sergeant Major of the Army Reserve had requested a welfare check of appellant. He noted that
appellant may be dealing with mental health issues and it was unclear whether her comments were
a threat or that she was taking legal action against her chain of command. Officer M.D. noted that
he was unable to contact appellant in person. However, by telephone, appellant had advised that
she did not need any assistance.
On January 22, 2017 appellant submitted an application to correct her military record due
to workplace discrimination.
In correspondence between March 2015 and February 14, 2017, appellant requested that
the IG issue a favorable decision regarding her whistleblower complaint and facilitate her transfer
to a different command.
By decision dated March 10, 2017, an OWCP hearing representative affirmed OWCP’s
June 1, 2016 decision, finding that appellant had not established a compensable employment
factor. The hearing representative found that the events that occurred at Fort Hunter-Liggett, the
6

CDMHE, and the examination/treatment at Keller Army Hospital were not covered under FECA
as they had occurred in connection with appellant’s active military service. The hearing
representative further found that there was no evidence that appellant was subjected to
discrimination, harassment, or other mistreatment relating to her allegations that she was barred
from the West Point and Clearfield Army Reserve facilities, falsely accused of misconduct,
improperly subjected to welfare checks by the local police at the request of the Army Reserve, and
denied promotion.
On June 19, 2017 appellant requested reconsideration. In support of her request, she
submitted a 10-page letter dated May 29, 2017 and a June 9, 2017 Formal Physical Evaluation
Board (PEB) Proceedings, which recommended permanent (military) disability retirement.
In the 10-page letter, appellant repeated her allegations of mistreatment by her supervisors
in her civilian position. She also expressed displeasure over the manner in which the March 10,
2017 hearing was conducted.
By decision dated August 30, 2017, OWCP denied modification of its prior decision. It
found that allegations alone were insufficient to establish a factual basis for an emotional condition
claim. OWCP noted that, as the evidence of record did not establish a compensable factor of
employment, the medical evidence would not be considered.
LEGAL PRECEDENT
To establish an emotional condition causally related to factors of a claimant’s federal
employment, he or she must submit: (1) factual evidence identifying and supporting employment
factors or incidents alleged to have caused or contributed to her condition; (2) rationalized medical
evidence establishing an emotional condition or psychiatric disorder; and (3) rationalized medical
opinion evidence establishing the emotional condition is causally related to the identified
compensable employment factors.10
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.11 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force, or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.12
In cases of dual status (civilian and military member) employees, where the military
determines that an injury occurred in the line of duty, such injury is deemed referable to military
10

See Kathleen D. Walker, 42 ECAB 603 (1991).

11

Lillian Cutler, 28 ECAB 125 (1976).

12

Gregorio E. Conde, 52 ECAB 410 (2001).

7

service and is not covered under FECA.13 The issue becomes whether the employee’s disabling
emotional condition was precipitated or aggravated by the conditions of the civilian employment.14
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.15 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.16 However, to the extent 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.17
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his or her regular duties, these could constitute employment factors.18
However, 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.19
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting her allegations with probative
and reliable evidence.20 When the matter asserted is a compensable factor of employment and the
evidence of record establishes the truth of the matter, OWCP must base its decision on an analysis
of the medical evidence.21
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.

13

Jerry C. Gilliam, 39 ECAB 1003 (1988) (Army member/civilian unit administrator injured in the line of duty not
covered under FECA); Patrick O’Hara, 34 ECAB 493 (1982) (an injury resulting solely from active duty in the
military reserve is not sufficiently related to an employee’s civilian employment to be covered by FECA, even if
appellant’s civilian employment requires that he belong in the military).
14

Walter E. Yow, 32, ECAB 1079 (1981).

15

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

16

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

17

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

18

David W. Shirey, 42 ECAB 783, 795-96 (1991); supra note 10.

19

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

20

See supra note 10.

21
See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).

8

With regard to her civilian employment, the Board notes that appellant’s claim does not
directly relate to her regular or specially assigned duties under Lillian Cutler.22 Rather, appellant
primarily claimed that she was subjected to reprisal, discrimination, harassment, or other
mistreatment.
Appellant, a dual status employee (i.e., both a civilian employee and military service
member), alleged that she sustained an emotional condition after she was ordered in her military
capacity to undergo a CDMHE. She indicated that the Mental Health Review Board erroneously
determined that she had a psychiatric condition. Appellant alleged that, upon the military
discovering that she had a psychiatric condition, she was subjected to discrimination and unfair
treatment in her civilian position. The Board notes that the events that occurred while appellant
was at Fort Hunter-Liggett (i.e., the order that she undergo a CDMHE and examination/treatment
at Keller Army Hospital) occurred in the line of duty during active military service and, thus, are
not covered under FECA.23
Regarding the allegations of administrative error or abuse, appellant alleged that she
received April 15 and May 12, 2015 counseling from Captain R.P. as well as instructions from
K.M. regarding reporting to work or being on approved leave of absence. The Board notes that
the handling of leave requests and attendance matters are generally related to the employment,
they are administrative functions of the employer and not duties of the employee, and not
compensable absent evidence of error or abuse.24 The Board finds that the employing
establishment acted reasonably in this administrative matter. A supervisor or manager must be
allowed to perform his or her duties and that, in performing such duties, employees will at times
dislike actions taken.25 Appellant has presented no corroborating evidence to support that the
employing establishment acted unreasonably in these administrative matters.
Appellant also alleged that she was falsely accused of misconduct and placed on
administrative leave pending an investigation, and improperly subjected to welfare checks from
the police department at the request of the employing establishment. She did not submit supporting
evidence, such as the final finding of a formal grievance or complaint showing that the actions
taken by management officials were improper or unreasonable in light of her reported behavior.
Thus, the evidence of record is insufficient to establish error or abuse with respect to these
administrative and personnel matters.26
The Board further notes that appellant has not submitted evidence showing that she was
subjected to harassment by being placed on administrative leave and subjected to welfare checks
from the PA police department at the request of the employing establishment. The Board has held

22

See supra note 11.

23

See supra note 11.

24

See A.L., Docket No. 17-0368 (issued June 20, 2018).

25

Id.

26

Supra note 15.

9

that unfounded perceptions of harassment do not constitute a compensable employment factor.27
Mere perceptions are not compensable under FECA and harassment can constitute a factor of
employment if it is shown that harassment actually occurred.28 While appellant has filed
grievances and EEO complaints, there is no final decision showing that disparate treatment
actually occurred.29 Appellant has not established a compensable employment factor with respect
to the claimed harassment.30
Appellant alleged that her supervisor and management obstructed her promotion to a GS-7
position and that her employment was ultimately terminated. Absent evidence of error or abuse
of discretion, matters related to hiring and firing are not compensable.31 The evidence of record
reveals that appellant was not granted an interview for the GS-7 position based on her current
performance with the unit. This is supported by the March 11, 2015 listing of competitors for the
position, where appellant was not recommended due to her current performance, and the undated
partial investigation report, which noted that both Captain R.P. and Lieutenant K.M. indicated that
appellant was not considered for the job as she could not handle any more workload. As there is
no evidence of error or abuse in management’s failure to promote appellant to the GS-7 position,
she has not established an emotional condition in the performance of duty.32 Additionally, the
Board has held that when employees become emotionally upset over not receiving an anticipated
promotion, “the resulting disability does not have such a relationship to the employee’s assigned
duties as to be regarded as arising from the employment.”33 With regard to the termination of her
employment, appellant has not submitted any evidence to establish error or abuse in this personnel
action.34
For these reasons, the Board finds that appellant has not established a compensable
employment factor. In light of the Board’s finding on the factual aspect of her case, it is
unnecessary to consider the medical evidence of record.35

27

See F.K., Docket No. 17-0179 (issued July 11, 2017).

28

Id.

29

Supra note 16.

30

See generally C.T., Docket No. 08-2160 (issued May 7, 2009) (finding that some statements may be considered
abusive and constitute a compensable factor of employment, but that not every statement uttered in the workplace will
be covered by FECA).
31

C.S., 58 ECAB 137 (2006).

32

W.D., Docket No. 13-1522 (issued November 14, 2013).

33

See supra note 11.

34

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

35

Garry M. Carlo, supra note 21.

10

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of her federal employment duties.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, SULPHUR SPRINGS
POST OFFICE, Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0666
Issued: August 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 9, 2015 appellant, through his representative, filed a timely appeal from a
January 23, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Because more than 180 days has elapsed from the last merit decision dated April 30, 2013 to the
filing of this appeal, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of his claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On October 4, 2012 appellant, then a 56-year-old letter carrier, filed an occupational
disease claim alleging that he developed pain in his neck, both shoulders, and arms due to his
1

5 U.S.C. § 8101 et seq.

employment duties. He described his employment duties of casing mail and parcels weighing up
to 70 pounds. Appellant noted that his route had 626 deliveries and that he performed
dismounted deliveries from his postal vehicle for a portion of his route. He also parked his
vehicle to walk and deliver mail from a satchel weighing up to 35 pounds for 55 residential
deliveries.
On September 19, 2012 Dr. Samy F. Bishai, a Board-certified orthopedic surgeon,
examined appellant due to pain in his shoulders bilaterally, worse on the left, stiffness in the left
shoulder, and difficulty lifting the left arm. He noted that appellant initially sought treatment
from another physician who found tenderness in appellant’s left shoulder with marked limitation
in range of motion. Dr. Bishai reviewed a magnetic resonance imaging (MRI) scan which
demonstrated subluxation of the humeral head with bone contusions and chondromalacia at the
posterior glenoid. He found complex tears of the glenoid labrum and hypertrophic changes at the
acromioclavicular joint and supraspinatus tendinopathy.
Dr. Bishai diagnosed internal
derangement of the left shoulder with chondromalacia and impingement syndrome. He opined
that appellant’s left shoulder condition was the result of his employment activities and listed
those activities. Dr. Bishai stated that lifting of mail and parcels as well as casing, delivery, and
carrying of the satchel combined together to cause appellant’s left shoulder condition.
In a letter dated October 18, 2012, OWCP requested additional factual information from
appellant. It also requested additional medical evidence and allowed appellant 30 days to
respond.
By decision dated November 26, 2012, OWCP denied appellant’s claim finding that he
failed to submit the necessary medical opinion evidence to establish a causal relationship
between his diagnosed condition and his implicated employment duties. Appellant requested an
oral hearing from OWCP’s Branch of Hearings and Review.
On January 12, 2012 appellant underwent an MRI scan of the left shoulder which
demonstrated subluxation of the humeral head with bone contusions, chondromalacia, complex
tears of the posterior labrum extending into the superior and inferior labrums, changes at the
acromioclavicular joint, supraspinatus tendinopathy, joint effusion, and possible glenohumeral
instability lesions.
Appellant submitted reports from Dr. Bishai dated October 11, November 16, and
December 20, 2012 repeating his earlier findings and diagnoses. Beginning on November 16,
2012 Dr. Bishai stated that appellant was using his right shoulder and arm more since his left
shoulder was disabled and impaired resulting in a consequential injury to the right shoulder. He
also found that appellant had loss of range of motion in the right shoulder and diagnosed internal
derangement of the right shoulder joint and rotator cuff syndrome of the right shoulder. On
February 27, 2013 Dr. Bishai stated that appellant’s condition was the same. On March 14, 2013
he noted that appellant reported pain in his neck with radiation down the shoulders and arms and
diagnosed the additional condition of cervical disc syndrome with radiculopathy.
Appellant testified at the oral hearing on March 14, 2013 and stated that his neck and
shoulders began to bother him in July 2009 and progressively worsened. He stated that he first

2

received treatment for his left shoulder in January 2012. Appellant testified that he injured his
right shoulder in 2007 and sought treatment from a chiropractor.
OWCP’s hearing representative denied appellant’s claim by decision dated
April 30, 2013. He found that appellant had not submitted the medical evidence requested
regarding his history of treatment. The hearing representative noted that appellant reported a
shoulder condition arising in 2007 and that there were no medical records regarding this injury in
the record. He found that Dr. Bishai’s reports were not based on an accurate history of injury
and that appellant had not established that his neck, bilateral arm, and shoulder conditions were
related to his employment duties.
In a report dated April 24, 2013, Dr. Bishai stated that he reviewed nerve conduction
studies on March 21, 2013 which suggested entrapment neuropathy at the right elbow as well as
carpal tunnel syndrome. He also reviewed a cervical MRI scan and found disc bulges at C4-5,
C5-6, and C7-T1.
On June 18, 2013 Dr. Bishai disagreed with an OWCP hearing
representative’s findings and conclusions. He repeated his previous diagnoses. Dr. Bishai
opined that appellant’s left shoulder condition was directly caused by his work activities as a
letter carrier. He noted that appellant’s right shoulder condition was a consequential injury
resulting from overuse due to the pain in appellant’s left shoulder. Dr. Bishai stated that he had
reviewed appellant’s prior medical treatment with an orthopedic surgeon on February 23,
December 12 and 22, 2012. He stated that appellant’s shoulder condition could be improved by
arthroscopic surgery. Dr. Bishai also opined that it was not necessary to review appellant’s right
shoulder treatment records from 2007. He stated that he was aware that appellant had
experienced his left shoulder condition for years, but that appellant had recently determined that
medical treatment was necessary.
Dr. Claude Barosy, a family practitioner, examined appellant on August 6, 2013 and
reported his complaints of left shoulder, head, and neck pain. He found loss of range of motion
of the cervical spine and left shoulder. Dr. Barosy diagnosed cervical disc disease with
radiculopathy, cervical disc syndrome, internal derangement of the left shoulder joint, and left
shoulder impingement syndrome.
Appellant’s representative submitted a motion to reconsider dated January 14, 2014 and
received by OWCP on January 21, 2014. He also submitted a medical report dated
December 19, 2013 from Dr. Bishai. In this report, Dr. Bishai again opined that appellant’s
conditions were work related.
Dr. Eduardo L. Gonzalez, a Board-certified practitioner, examined appellant on
March 12, 2014 due to neck and bilateral shoulder pain. He opined that appellant’s left shoulder
symptoms were produced as part of his work as a letter carrier.
On April 4, 2014 Dr. Robert R. Reppy, an osteopath, stated that appellant’s right shoulder
pain had mostly resolved. He stated that appellant’s neck pain contributed to headaches with
nausea.
In a letter dated January 14, 2015, appellant’s representative stated that he requested
reconsideration on January 14, 2014 of the April 30, 2013 merit decision. He included a copy of

3

a motion to reconsider dated January 14, 2014 which referenced the December 19, 2013 report
from Dr. Bishai.
By decision dated January 23, 2015, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA2 does not entitled a claimant to a review of an OWCP decision
as a matter of right.3 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.4 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that it will not
review a decision denying or terminating a benefit unless the application for review is received
within one year of the date of that decision.5 The Board has found that the imposition of this
one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).6
In those cases where requests for reconsideration are not timely filed, the Board has held
that OWCP must nevertheless undertake a limited review of the case to determine whether there
is clear evidence of error pursuant to the untimely request.7 OWCP procedures state that OWCP
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in its regulations, if the claimant’s request for reconsideration shows “clear evidence of
error” on the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must be
manifest on its face that it committed an error.10 Evidence which does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error.11 It is not enough merely to show that the evidence could be construed so as to
2

Id. at § 8128(a).

3

Thankamma Mathews, 44 ECAB 765, 768 (1993).

4

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

5

20 C.F.R. § 10.607(a). The Board has concurred in OWCP’s limitation of its discretionary authority. See
Gregory Griffin, 41 ECAB 186 (1989); petition for recon. denied, 41 ECAB 458 (1990).
6

Supra note 3 at 769; Jesus D. Sanchez, supra note 4 at 967.

7

Supra note 3 at 770.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011).

9

Supra note 3 at 770.

10

Leona N. Travis, 43 ECAB 227, 241 (1991).

11

Jesus D. Sanchez, supra note 4 at 968.

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produce a contrary conclusion.12 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of it.13 To show clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflict in
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.14 The Board must make an independent determination of
whether a claimant has submitted clear evidence of error on the part of OWCP such that OWCP
abused its discretion in denying merit review in the face of such evidence.
ANALYSIS
Appellant had one year from April 30, 2013 to make a timely request for reconsideration.
Appellant, through his representative, requested reconsideration through a document entitled
motion for reconsideration which was dated January 14, 2014 and which was received by OWCP
on January 21, 2014. The request for reconsideration was received by OWCP on January 21,
2014 within one year after the April 30, 2013 decision. OWCP incorrectly found that appellant’s
request for reconsideration was untimely on its face. It erroneously reviewed the evidence
submitted by appellant in support of her reconsideration request under the clear evidence of error
standard for untimely requests. The Board remands the case to OWCP for review of this
evidence under the proper standard of review for a timely request for reconsideration.
CONCLUSION
The Board finds that the evidence in the record establishes that appellant’s representative
submitted a timely request for reconsideration and that the evidence must be reviewed by OWCP
under the proper standard of review.

12

Supra note 10.

13

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the January 23, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 14, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., widow of M.S., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

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Appearances:
John F. Dillon, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-891
Issued: September 25, 2014

Case Submitted on the Record

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

JURISDICTION
On March 10, 2014 appellant, through counsel, filed a timely appeal of a January 10,
2014 decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
death benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that the
employee’s death was causally related to exposure to asbestos at work.
On appeal counsel argues that the employee’s asbestosis contributed to his death.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On August 7, 2013 the Board set aside a
January 18, 2013 decision denying appellant’s claim for survivor benefits.2 The Board found
that there was an unresolved conflict between Dr. Ghulam Arian, an attending Board-certified
internist, and an OWCP medical adviser on the issue of whether the employee’s work-related
asbestosis contributed to his death. The facts and the circumstances of the case as set forth in the
Board’s prior decision are incorporated herein by reference.3
Following the Board’s August 7, 2013 decision, OWCP, by letter dated October 7, 2013,
referred the employee’s case file and medical records, including a statement of accepted facts
and list of questions, to Dr. Kyle I. Happel, a Board-certified internist with subspecialty
certifications in critical care medicine and pulmonary disease, for an impartial medical opinion.
In a December 12, 2013 report, Dr. Happel detailed the factual and medical history upon
his review of the medical records and provided his analysis. He related that the employee
exhibited multiple risk factors for coronary artery disease, which included hypertension, smoking
and hypercholesterolemia. Dr. Happel noted that in the United States coronary artery disease is
one of the most common causes of death. A review of objective testing revealed that the
employee had a prior myocardial infarction and underwent stent replacement and percutaneous
coronary angiography. According to Dr. Happel the employee’s coronary artery disease,
hypercholesterolemia and congestive heart failure were unrelated to his asbestosis and that
asbestosis was not a recognized factor for congestive heart failure. He attributed the employee’s
death to refractory congestive heart failure which led to cardiac arrest. The underlying cause of
the employee’s congestive heart failure was coronary artery disease.
By decision dated January 10, 2014, OWCP denied appellant’s claim for survivor
benefits. It found that the employee’s death was not caused or aggravated by his accepted workrelated asbestosis.
LEGAL PRECEDENT
FECA provides that the United States shall pay compensation for disability or death of an
employee resulting from personal injury sustained while in the performance of duty.4

2

Docket No. 13-768 (issued August 7, 2013).

3

On November 12, 2010 the employee, then a 77-year-old asbestosis worker, filed an occupational disease claim
alleging that on April 7, 2009 he first became aware of his chronic obstructive pulmonary disease and asbestosis and
its relationship to his federal employment. The employee retired from the employing establishment on June 3, 1988.
On June 1, 2011 OWCP accepted the employee’s claim for asbestosis.
The employee died on January 23, 2011 and on April 6, 2011 appellant filed a claim for compensation (Form
CA-5) due to the death of her husband. She attributed his death to congestive heart failure/asbestosis due to his
work exposure to asbestosis and submitted a copy of the death certificate.
4

5 U.S.C. § 8133.

2

Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.5
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”6 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.7
ANALYSIS
The Board previously found a conflict in medical opinion existed between the reports of
Dr. Arian, for appellant, and an OWCP medical adviser on the issue of whether the employee’s
work-related asbestosis contributed to his death and remanded the case for referral of the case
file to an impartial medical specialist and to issue a de novo decision. On remand, OWCP
referred appellant to Dr. Happel for an impartial medical evaluation.
The Board finds that Dr. Happel, based on an extensive review of the medical evidence
and statement of accepted facts, concluded that the employee’s accepted work-related asbestosis
did not cause or contribute to his death. Rather, he concluded that the employee died due to end
stage congestive heart failure as a result of his coronary artery disease, which was unrelated to
the accepted work-related asbestosis. Dr. Happel noted that the employee exhibited multiple risk
factors for coronary artery disease, which included hypertension, smoking and hypercholesterolemia, and coronary artery disease is one of the most common causes of death in the
United States. He opined that asbestosis was not a recognized factor for congestive heart failure.
Dr. Happel attributed the employee’s death to refractory congestive heart failure which led to
cardiac arrest with an underlying cause of coronary artery disease. As asbestosis is not
recognized as a factor in causing biventricular congestive heart failure, he opined that the
employee’s asbestosis was not a direct cause or contributing factor in his death.
The Board finds that Dr. Happel provided a well-rationalized, impartial medical opinion
based on a complete factual background, an extensive and thorough review of the accepted facts
and the medical record. Dr. Happel’s opinion that the employee’s death on January 23, 2011
was not causally related or aggravated by his accepted work-related asbestosis is entitled to

5

L.R. (E.R.), 58 ECAB 369 (2007); Viola Stanko (Charles Stanko), 56 ECAB 436 (2005).

6

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
7

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

3

special weight and represents the special weight of the evidence.8 The Board will affirm
OWCP’s January 10, 2014 decision denying compensation for death benefits.
On appeal, counsel asserted that the employee had severe asbestosis and chronic
obstructive pulmonary disease, the asbestosis caused severe respiratory impairment and that the
asbestosis was a contributing factor in the employee’s death. For the reasons set forth above, the
Board finds that OWCP properly relied on Dr. Happel’s opinion in concluding that the
employee’s death was unrelated to his work-related asbestosis. Appellant has not submitted any
medical evidence which would create a conflict with Dr. Happel’s opinion.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that the
employee’s death on January 23, 2011 was causally related to the accepted work-related
asbestosis.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 10, 2014 is affirmed.
Issued: September 25, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
8

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

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