United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-23
Issued: March 25, 2008

Case Submitted on the Record

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

JURISDICTION
On October 1, 2007 appellant filed a timely appeal from February 23 and July 16, 2007
decisions of the Office of Workers’ Compensation Programs, denying his claim for an emotional
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation beginning
January 22, 2004 due to his accepted emotional condition.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated November 27, 2006, the Board
remanded the case for further development. The facts of this case, as set forth in the prior
decision, are incorporated herein by reference.
On August 26, 2003 appellant, then a 51-year-old supervisory transportation security
screener, filed an occupational disease claim alleging that he sustained an emotional condition
and chest pain due to harassment at work. He was treated in an emergency room on that date for
depression and atypical chest pain. Appellant indicated that on August 26, 2003 he became
embarrassed while thinking about the tasks he had been assigned the previous few weeks, tasks
that he did not usually perform. He alleged that on February 7, 2003 Aloycia Woods, another
supervisor, loudly and repeatedly called him an “asshole” and told him to “kiss her ass” in front
of passengers and coworkers.2 Appellant alleged that management falsely accused him of sexual
harassment, accused him of submitting timecards without a supervisor’s signature and of being
late to work, assigned tasks that he disliked, informed him on short notice that he would have to
work another week without a day off and contacted him numerous times while he was on
administrative leave. On August 26, 2003 he was placed on administrative leave.3 In a
statement of accepted facts dated August 11, 2004, the Office stated that the February 7, 2003
incident with Ms. Woods occurred in the performance of duty.4 Effective January 22, 2004,
appellant was terminated from his job for unprofessional and inappropriate conduct and failure to
follow instructions.5 He did not file a grievance or otherwise challenge the termination. In a
report dated September 7, 2004, Dr. Russell Prince, a psychiatrist and Office referral physician,
diagnosed major depression, severe, without psychotic features caused by the accepted
employment factor, the February 7, 2003 incident involving Ms. Woods. On September 17,
2004 the Office accepted appellant’s claim for major depression, severe, without psychotic
behavior.6
On October 25, 2004 appellant filed a claim for wage-loss compensation on and after
January 22, 2004, citing his removal from his job. On November 3, 2004 the Office noted that
1

See Docket No. 06-1473 (issued November 27, 2006).

2

In a written statement submitted November 17, 2003, appellant indicated that the incident with Ms. Woods
occurred on March 17, 2003. However, in statements submitted January 13 and April 22, 2004, he stated that the
incident occurred on February 7, 2003.
3

It appears that appellant was placed on administrative leave following a disagreement with management
concerning his request to visit the airport medical clinic, instead of his own physician, and his request for claim
forms.
4

The record shows that appellant later accepted an apology from Ms. Woods and was satisfied that the
February 7, 2003 incident was resolved.
5

The employing establishment described numerous specific incidents of unprofessional and inappropriate
conduct, including dates, times, the individuals involved, what occurred and the reasons that appellant’s conduct was
deemed to be unsatisfactory.
6

The Office indicated that the date of injury was March 17, 2003. However, as noted, appellant subsequently
stated that the incident with Ms. Woods occurred on February 7, 2003, not March 17, 2003.

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appellant was removed due to his unsatisfactory job performance, not because of his accepted
injury occurring on February 7, 2003.
By decision dated March 4, 2005, the Office denied appellant’s claim on the grounds that
he failed to establish that his disability beginning January 22, 2004 was due to his accepted
emotional condition. The Office noted that his claim was accepted for the single incident that
occurred on February 7, 2003 when Ms. Woods called him an asshole in public while he was on
duty. It stated that his chest pain experienced on August 26, 2003 was not accepted as work
related because the factor he cited, feeling embarrassed about the duties he was asked to perform,
was not determined to be a compensable employment factor.
On March 22, 2005 appellant requested an oral hearing that was held on
February 15, 2006. In a February 22, 2006 written statement, he reiterated his allegations of
harassment from management and submitted copies of disciplinary actions taken against him.
By decision dated May 3, 2006, an Office hearing representative affirmed the March 4, 2005
decision. In a prior appeal, the Board set aside this decision and remanded the case.
Following remand of the case by the Board, the Office issued a February 23, 2007
decision denying appellant’s claim on the grounds that the factual evidence failed to show that
his disability beginning January 22, 2004 was due to the one accepted compensable employment
factor, the incident on February 7, 2003 with Ms. Woods. The Office noted that appellant was
terminated for unsatisfactory job performance as of January 22, 2004.
On March 12, 2007 appellant requested a review of the written record. By decision dated
July 16, 2007, an Office hearing representative considered newly obtained medical evidence and
affirmed the February 23, 2007 decision.7
LEGAL PRECEDENT
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 employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.8 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 frustration from not being permitted to work in a
particular environment or to hold a particular position.9

7

Subsequent to the July 16, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
8

5 U.S.C. §§ 8101-8193.

9

Lillian Cutler, 28 ECAB 125 (1976).

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Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.10
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.11 When a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.12 As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.13 Where the claimant alleges compensable factors of employment,
he must substantiate such allegations with probative and reliable evidence.14 When the matter
asserted is a compensable factor of employment and the evidence of record establish the truth of
the matter asserted, then the Office must base its decision on an analysis of the medical
evidence.15
ANALYSIS
On October 25, 2004 appellant filed a claim for wage-loss compensation on and after
January 22, 2004, citing his removal from his job as the reason for his disability. The record
shows that the employing establishment terminated him effective January 22, 2004 due to his job
performance, not because of his accepted injury occurring on February 7, 2003. In the
January 14, 2004 removal notice, the employing establishment described specific incidents of
inappropriate conduct and failure to follow instructions, including dates, times, the individuals
involved, what occurred and the reasons that appellant’s conduct was deemed to be
unsatisfactory. Appellant did not grieve the termination. There is insufficient evidence that the
employing establishment erred or acted abusively in terminating appellant’s employment
effective January 22, 2004. Therefore, this allegation is not deemed a compensable factor of
employment.

10

Michael Thomas Plante, 44 ECAB 510 (1993).

11

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

12

Margaret S. Krzycki, 43 ECAB 496 (1992).

13

See Charles E. McAndrews, 55 ECAB 711 (2004).

14

Joel Parker, Sr., 43 ECAB 220 (1991).

15

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

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Appellant failed to establish that his disability beginning January 22, 2004, the date he
was terminated from his job, was causally related to a compensable factor of employment.
Therefore, the Office properly denied his claim.
CONCLUSION
The Board finds that appellant failed to establish that he is entitled to wage-loss
compensation beginning January 22, 2004 due to his accepted emotional condition.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 16 and February 23, 2007 are affirmed.
Issued: March 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, St. Louis, MO, Employer
__________________________________________

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

Docket No. 14-1700
Issued: December 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 1, 2014 appellant, through counsel, filed a timely appeal from a June 10, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
This issue is whether appellant established that she sustained an injury in the performance
of duty on August 15, 2013, as alleged.
On appeal, appellant’s counsel argues that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 2, 2013 a claim for traumatic injury was filed on behalf of appellant, then a
52-year-old transportation security officer. The claim form noted that appellant stated that she
“tweaked” her left shoulder on August 15, 2013 while removing a bag from the x-ray tunnel and
that her pain increased over time. The employing establishment controverted the claim. It noted
that appellant did not remember the time or date of the claimed injury and that the date was
estimated.
By letter dated October 30, 2013, OWCP asked appellant to submit further information in
support of her claim.
Appellant submitted a November 21, 2013 progress report by Dr. Dennis G. Motchan, a
Board-certified internist, who diagnosed sprain of an unspecified site of the left shoulder and
upper arm. Dr. Motchan noted that appellant gave a history of working for the employing
establishment and that on August 15, 2013 she pulled a heavy bag while at work and felt pain in
her left shoulder. Appellant told Dr. Motchan that the pain was minor at first, but slowly
increased, and eventually became a throbbing in the shoulder with numbness and tingling
radiating down her left arm. Dr. Motchan stated that appellant brought a copy of a magnetic
resonance imaging scan which revealed a partial supraspinatus tear and possible labral tear. He
assessed her with a severe left shoulder strain and referred her to an orthopedic surgeon.
In a December 3, 2013 report, Dr. Chris W. Kostman, a Board-certified orthopedic
surgeon, related appellant’s history of injury while working for the employing establishment as
an airport screener. He conducted a physical examination and obtained an x-ray. Dr. Kostman
concluded that appellant had left shoulder rotator cuff tendinitis with a possible partial-thickness
rotator cuff tear and possible labral tear.
In a December 16, 2013 decision, OWCP denied appellant’s claim. It accepted the
August 15, 2013 incident, but found the medical evidence insufficient to establish causal
relation.
In a December 10, 2013 report, Dr. Kostman noted that appellant had significant
improvement following a subacromial injection. He believed that her symptoms following the
injury of August 15, 2013 were more consistent with rotator cuff tendinitis.
On March 5, 2014 appellant requested reconsideration. She noted that she had tried to
work with the injury but was not able to fully perform her responsibilities.
Appellant submitted handwritten notes by a nurse practitioner dated November 15, 2013
and February 14, 2014, countersigned by Dr. Syed Hussain, a Board-certified surgeon. She
presented on November 15, 2013 with complaints of pain and limited mobility. Appellant
reported that the injury occurred on August 15, 2013. She was diagnosed with a partial thickness
tear of the supraspinatus tendons, moderate rotator cuff tendinitis and a small tear of the glenoid
labrum.
In a February 26, 2014 report, Dr. Donald A. Weimer, a Board-certified orthopedic
surgeon, noted treating appellant for left shoulder pain. He stated that she worked for the
employing establishment and, on August 15, 2013 she was pulling a luggage bag and
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experienced pain in left shoulder that progressed. Dr. Weimer noted that appellant’s x-rays
showed moderate acromioclavicular joint arthritis. He recommended a left shoulder arthroscopic
decompression, distal clavicle excision and repair of partial articular-sided tear of the
supraspinatus. Dr. Weimer believed that appellant’s need for surgery was causally related to her
injury given the lack of any problems in the shoulder prior to the injury.
By decision dated June 10, 2014, OWCP denied modification of its December 16, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component is whether the employee experienced the
employment incident or exposure, which is alleged to have occurred.3 In order to meet his or her
burden of proof to establish the fact that he or she sustained an injury in the performance of duty,
an employee must submit sufficient evidence to establish that he or she experienced the
employment injury or exposure at the time, place and in the manner alleged.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6

2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.2(a) (August 2012).

4

Linda S. Jackson, 49 ECAB 486 (1998).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

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ANALYSIS
OWCP accepted that the August 15, 2013 employment incident occurred as alleged. The
Board finds that appellant has not met her burden of proof to establish a causal relationship
between her left shoulder condition and the accepted employment incident.
Appellant’s first medical report is dated November 21, 2013, over two months after the
August 15, 2013 employment incident. Dr. Motchan noted that she provided a history of pulling
a heavy bag at work on August 15, 2013, and while the pain in her shoulder was minor at first, it
increased. He did not provide an opinion relating the accepted incident to her diagnosed left
shoulder strain.
Dr. Kostman listed appellant’s employment incident and noted that she had left shoulder
rotator cuff tendinitis with possible partial-thickness rotator cuff tear and possible labral tear. He
subsequently indicated that appellant’s symptoms were more consistent with rotator cuff
tendinitis. Dr. Kostman also did not directly address how her left shoulder conditions were
caused or contributed to by the August 15, 2013 employment incident.
On February 26, 2014 Dr. Weimer stated his belief that appellant’s moderate
acromioclavicular joint arthritis was related to the August 15, 2013 employment incident. He
cited to a lack of any problems in the shoulder prior to the injury. Dr. Weimer did not provide a
rationalized medical opinion on causal relationship. He did not adequately explain how her
condition was due to pulling on a bag at work. Opinions based on the lack of symptoms before
the injury are insufficient, without supporting medical rationale, to establish causal relationship.7
In the reports countersigned by Dr. Hussain, appellant’s treatment on November 15, 2013
and February 14, 2014 was noted. Dr. Hussain, however, failed to provide any medical rationale
addressing how the August 15, 2013 incident caused appellant’s left shoulder condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that the condition was caused by her employment is sufficient to
establish causal relationship.8
The Board finds that appellant has not submitted sufficient medical evidence to establish
her claim. As noted, causal relationship is a medical question that must be established by
probative medical opinion from a physician.9 The physician must accurately describe appellant’s
work duties and medically explain the pathophysiological process by which these duties would

7

F.I., Docket No. 11-1540 (issued April 10, 2012).

8

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

9

W.P., Docket No. 14-1076 (issued September 18, 2014).

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have caused or aggravated her condition.10 Because appellant has not provided such medical
opinion evidence in this case, she has failed to meet her burden of proof.
The Board notes that appellant submitted evidence from a Dr. Thomas Meyer dated
July 22, 2014 after the issuance of the June 10, 2014 decision. The Board lacks jurisdiction to
review evidence for the first time on appeal.11
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 established that she sustained an injury in the
performance of duty on August 15, 2013, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 10, 2014 is affirmed.
Issued: December 1, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
10

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).
11

20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF LABOR, BUREAU OF
LABOR STATISTICS, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 12-386
Issued: August 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 14, 2011 appellant, through his attorney, filed a timely appeal from a
September 14, 2011 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On October 25, 2010 appellant, then a 42-year-old economic assistant, filed an
occupational disease claim alleging that his Parkinson’s disease, aggravation of manic depression
1

5 U.S.C. §§ 8101-8193.

and hypertension were due to his work duties. He was diagnosed with Parkinson’s disease on
September 17, 2010 and he stopped work on September 21, 2010.
By letter dated November 1, 2010, OWCP advised appellant that additional factual and
medical evidence was needed to support his claim.
In a November 11, 2010 statement, appellant stated that the constant changing nature of
his job requirements was the main reason for his illness. He stated that he must maintain
technical specifications and it was tedious knowing whether a responder was being truthful.
Appellant stated that there were no specific dates, but indicated that it occurred on an ongoing
basis. He stated that the answers to his field questions were highly pertinent as he got
micromonitored feedback in the form of a schedule review. Appellant stated that the time
constraints limited his ability to obtain correct responses. He indicated that the constant review
of his work made him lose confidence and that the numerous schedule reviews were followed up
with comprehensive follow-up plans, which caused him to get or feel sick. Appellant stated that
his Parkinson’s disease made it difficult for him to handle the field computer and hanging the
computer around his neck in the field affected his cervical spine. He indicated that he had
difficulty getting his work done within the allowable time. Appellant failed his year end
performance review and was subject to a performance improvement plan (PIP). He stated that
failing his performance review caused major consternation emotionally. Appellant stated that his
outside activities were limited by Parkinson’s disease, which developed in 2007. He stated that
he was diagnosed with bipolar disorder and was under treatment since 1978 and was treated for
hypertension since the 1990s.
OWCP received October 1 and November 22, 2010 reports from Dr. Amy Colcher, a
Board-certified neurologist, indicating that appellant could not work in his job due to Parkinson’s
disease. Other evidence included leave analysis sheets and work schedules; a position
description; a productivity printout for the economic assistant position; a performance
management plan; appellant’s description of his job; an October 7, 2010 off work slip from
Dr. Alexandra McLean, a Board-certified psychiatrist; a September 17, 2010 report from
Dr. Leo McCluskey, a Board-certified psychiatrist; and an undated statement from the employing
establishment.
In a supervisor’s undated statement regarding appellant’s disability retirement
application, Gerald Perrins stated that, if appellant was not out on medical leave, he would be on
a PIP. It noted that appellant’s performance was less than fully successful on the critical element
for “Collecting Quality Data” and that his rating period was extended to provide the opportunity
to improve performance. The employer verified that errors have been found on review of
appellant’s work and that the work reviewed was randomly selected. The employer noted that it
accommodated appellant’s reduced tour of duty hours over the last several years due to various
health issues.
On December 21, 2010 OWCP received the employer’s response to appellant’s
allegations. The employer confirmed that appellant’s work was randomly sampled, as was the
work of others under the Data Collection Quality Program, which began in 1990. Errors were
repeatedly found in his work and, over the past three years, performance in the quality element
decreased until he failed, resulting in the need for a PIP. The employing establishment advised

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that its reviews showed that appellant had problems determining the appropriate authorizing
official and maximizing participation as well as difficulty interviewing respondents and using the
personal computer. It stated that most of the supervisors and field economists in the region
participated in at least some of the validation activities or remedial training and appellant’s
results were consistently problematic. The employing establishment denied that it “ganged up”
on appellant, noting that it was their typical distribution of work that allowed them to reduce the
charge of individual bias or shortcoming negatively impacting an employee. Based on
appellant’s performance, every schedule he completed had to be reviewed. While he alleged that
he was given tight timeframes for completing his work, the employing establishment indicated
that there was an efficiency standard which provided ranges but it was based on an average range
of all work. The employing establishment stated that many stores required extremely little time
or interaction and to suggest that every store, regardless of the number of quotes or complexity,
was given one hour to complete was absurd and had never been the policy or direction of the
employing establishment. It noted that driving was a critical part of the job due to the
geographic dispersion of assignments and most, if not all, of those who accompanied appellant
on observations and on-the-job training assignments were alarmed at his problematic driving and
decision making as he seemed to lack eye-hand coordination and judgment.
By decision dated January 6, 2011, OWCP denied appellant’s claim. It found that he did
not establish any compensable work factors.
On January 11, 2011 appellant requested an oral hearing, which was held on
June 22, 2011. He indicated that his job involved collecting data for the consumer price index
and entailed lots of travel and meeting with various respondents. Appellant indicated that he
worked 16 to 24 hours a week and, when it got busier, up to 32 hours. He also stated that he
worked another job at the Timothy School, averaging 20 to 22 hours weekly, doing bookkeeping.
Appellant stated that he could handle the demands of his Department of Labor position but he
did not realize the effect it was having on him. He stated that his left arm started to get tight and
he noticed a tremor. Appellant noted that he had issues with his neck, left hand and left foot. He
noted that he had carpal tunnel surgery and was out of work for a while. Appellant indicated that
he became more depressed and that his physiological and psychological problems progressively
worsened and his work quality diminished. He found it stressful making sure that he got his
work done. Appellant needed time to manage and to travel. He stated that the details required of
him became more intense and there were procedures or schedule reviews, where various people
would check his work and then send it back.
Appellant stated that it became too much trying to keep up with the various
recommendations of whatever he was doing wrong. He noted the areas around Philadelphia that
he covered and advised that he might have 30 to 35 stores to visit in that 24- to 32-hour period.
While on the road, appellant had to deal with traffic and weather conditions. He stated that there
were time restraints on evaluations and he had an hour to do a lot of work. Appellant noted
carrying a computer with a strap around his neck that he held like a tray and input information.
He noted that many times the respondents were not cooperative or did not have time. Many
times appellant had to go back and hope that they changed their minds or he had to pass the
information to his supervisors who would have someone else get the information. In addition to
data collection and a process called housing, he had to report his whereabouts to his supervisor.
Appellant indicated that since 2007 he felt his productivity became deficient and he had trouble

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making his demands. He felt that his health was deteriorating and he asked not to work more
than 24 hours weekly because he felt something was wrong. Appellant noted that his left side
started to drag, his tremors increased and his symptoms affected his ability to do his job such that
he did not meet his standards in his last review. His supervisors wanted to place him on a PIP in
September 2010 and he stuttered during his performance evaluation. Appellant stated that he
was not put on a PIP because he was sick. He stated that he could not work when stress levels
rose. Appellant stated that his job at Timothy School was less stressful.
Subsequent to the hearing, OWCP received statements from appellant’s attorney dated
June 24, July 19 and August 1, 2011 along with a copy of a July 7, 2011 denial of an
accommodation request with an attached November 2, 2010 report from Health and Human
Services, in which an occupational medicine consultant opined that, from mental and physical
health perspectives, appellant would only be able to perform his position part time or 24 hours a
week. Also received was a June 21, 2011 report from Dr. Colcher, which indicated that having
time constraints on task completion and traveling was stressful for people with Parkinson’s
disease. She also indicated that appellant had difficulty climbing stairs and reaching for things,
which are all aspects of his job. Dr. Colcher opined that the job stress associated with his job
exacerbated the Parkinson’s symptoms.
By decision dated September 14, 2011, an OWCP hearing representative affirmed the
January 6, 2011 decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed

2

George H. Clark, 56 ECAB 162 (2004).

3

28 ECAB 125 (1976).

4

See Robert W. Johns, 51 ECAB 137 (1999).

4

by the employing establishment or by the nature of the work.5 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.6 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.7 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.8 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 her frustration from
not being permitted to work in a particular environment or to hold a particular position.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
ANALYSIS
Appellant alleged an emotional condition as a result of the constant changing nature of
his job requirements, the technical specifications of his job and the time constraints involved in
acquiring responses from interviewees. He asserted that his work was constantly reviewed and
he was subjected to numerous scheduled reviews which made him feel sick. Appellant indicated
that he failed his year-end performance review and was to be placed on a PIP. The Board must
thus, initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board notes that while appellant generally
alleged that the nature of his job, which involved travel, working on a computer and collecting
data, was stressful, he has not specifically attributed his emotional condition to the regular or
specifically assigned duties of his position as an economic assistant and substantiated such
allegations with probative and reliable evidence. Appellant did not note particular time periods
and places in which specific work duties affected his claimed condition. He generally
complained about the amount of work he needed to complete; whereas the employing
establishment refuted appellant’s description of his duties. Appellant’s concerns about his job
were more associated with the results of his poor performance rather than concerns about
5

Lillian Cutler, supra note 3.

6

J.F., 59 ECAB 331 (2008).

7

M.D., 59 ECAB 211 (2007).

8

Roger Williams, 52 ECAB 468 (2001).

9

See Lillian Cutler, supra note 3.

10

C.S., 58 ECAB 137 (2006); A.K., 58 ECAB 119 (2006).

5

actually doing his job. His performance issues seemed to stem from his deteriorating medical
condition. The Board finds that he has not substantiated a compensable factor under Cutler.11
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,12 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
FECA would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.13
Appellant asserted that the time constraints in his job made it difficult to complete his
duties and to meet the time restraints required of his position. The Board notes that the
assignment of work is an administrative function14 and the manner in which a supervisor
exercises his or her discretion falls outside the ambit of FECA. Absent evidence of error or
abuse, appellant’s mere disagreement or dislike of a managerial action is not compensable.15
The Board finds that appellant has not offered sufficient evidence to establish error or abuse
regarding his work assignments. The employing establishment indicated that there was an
efficiency standard which provided an average range for all work. It explained that the work
requirements and the performance requirements were not consistent with appellant’s description.
Further, the employing establishment noted that the time frames for the job were average time
frames. It denied that appellant was only given one hour in which to complete an assignment
and stated that it was never the policy or direction of the employing establishment. The evidence
does not establish that the employing establishment acted unreasonably.16 Appellant has not
established administrative error or abuse in the performance of these actions and therefore they
are not compensable under FECA.
Appellant asserted that he was subject to constant review of his work and numerous
comprehensive follow-up plans that caused him to get sick. He stated that the review of his work
resulted in him failing his year end performance review and being subject to a PIP. The
employer explained why appellant’s performance was less than fully successful, noting that his
11

See Lillian Cutler, supra note 3

12

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

13

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

14

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

15

See also Peter D. Butt Jr., 56 ECAB 117 (2004); see Barbara J. Latham, 53 ECAB 316 (2002); (allegations
such as improperly assigned work duties, which relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties do not fall within the coverage of FECA).
16

D.L., 58 ECAB 217 (2006).

6

work was randomly sampled, as was the work of others. It noted that the errors were repeatedly
found in appellant’s work resulting in the need for a PIP. The employing establishment denied
treating appellant disparately noting that, based on his performance, every schedule he completed
had to be reviewed and the validation activities and remedial training for him were consistently
problematic. It advised that appellant’s rating period was extended to provide an opportunity to
improve performance. Appellant’s allegation that the employing establishment improperly
monitored or disciplined him relates to an administrative or personnel matter unrelated to his
regular or specially assigned duties and does not fall within the coverage of FECA.17 Although
the handling of disciplinary actions and evaluations are generally related to the employment, they
are administrative functions of the employing establishment and not duties of the employee.18
The record, as noted above, fails to establish that appellant was disciplined. While appellant may
have failed his year end performance review, he was not actually placed on a PIP as he was on
medical leave. To the extent that he is complaining about the manner in which a supervisor
performs his duties as a supervisor or the manner in which a supervisor exercises his supervisory
discretion fall, as a rule, is outside the scope of coverage provided by FECA. This principle
recognizes that a supervisor or manager in general must be allowed to perform his duties, that
employees will at times dislike the actions taken, but that mere disagreement or dislike of a
supervisory or management action will not be actionable, absent evidence of error or abuse.19
Absent evidence of error or abuse, appellant’s mere disagreement or dislike of a managerial
action is not compensable.20 The Board finds that appellant has not offered sufficient evidence
to establish error or abuse and the evidence does not establish that the employing establishment
acted unreasonably. Appellant has not established administrative error or abuse in the
performance of these actions and therefore they are not compensable under FECA.
Consequently, appellant has not established his claim for an emotional condition as he
has not attributed his claimed condition to any compensable employment factors.21
On appeal, appellant’s attorney contends that the employing establishment acknowledged
appellant had difficulty accomplishing his assigned duties as well as the stressful nature of his
position and, thus, he has provided prima facie evidence of his claim. As noted above, appellant
made general allegations that his emotional reaction arose from the nature of his work without
substantiating such allegations with probative and reliable evidence. His perception of his job
duties was not consistent with the job as described by the employing establishment. Thus,
appellant has not established a compensable employment factor. He may submit new evidence

17

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
18

Id. See Peter D. Butt Jr., supra note 15 (monitoring of work activities is an administrative function of the
employing establishment).
19

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

20

See Barbara J. Latham, supra note 15.

21

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

7

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 the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
HEALTH CLINIC, Baumholder, Germany,
Employer
__________________________________________
Appearances:
Brett E. Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0642
Issued: September 22, 2021

Case Submitted on the Record

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

On March 18, 2021 appellant, through counsel, filed a timely appeal from a September 21,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 21-0642.
On November 10, 2017 appellant, then a 71-year-old family advocacy program clinical
social worker, filed a traumatic injury claim (Form CA-1) alleging that on November 9, 2017 he
injured his back, neck, right wrist, left elbow and forearm, and both knees when the chair he
attempted to get out of slipped out from under him causing him to fall backward while in the
performance of duty. Appellant did not immediately stop work. By decision dated June 29, 2018,
OWCP accepted that the November 9, 2017 employment incident occurred as alleged, but denied
appellant’s traumatic injury claim, finding that the medical evidence of record was insufficient to
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.

establish that a medical condition was diagnosed in connection with the accepted employment
incident.
By decisions dated September 13, 2019 and September 21, 2020, OWCP denied
modification of the June 29, 2018 decision. In both decisions, it referenced a prior claim, OWCP
File No. xxxxxx626 that was accepted for unilateral primary osteoarthritis of the left knee,
aggravation of unilateral primary osteoarthritis of the right knee, and medial meniscus tear of the
left knee.2 OWCP indicated that this file remains open and appellant continued to receive
treatment including left knee replacement surgery and rehabilitation.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 3 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 4 In the present claim,
appellant alleged injuries to his knees. OWCP had previously accepted that he sustained unilateral
primary osteoarthritis of the left knee, aggravation of unilateral primary osteoarthritis of the right
knee, and medial meniscus tear of the left knee under OWCP File No. xxxxxx626. However, it
has not administratively combined the present claim with his previously accepted claim pertaining
to his knees for which he continues to undergo treatment.
For a full and fair adjudication of appellant’s current claim, the case must be returned to
OWCP to administratively combine the current case record with OWCP File Nos. xxxxxx068 and
xxxxxx626.5 Following this and other such further development as OWCP deems necessary, it
shall issue a de novo decision.6

2

The Board notes that appellant filed a prior claim in OWCP File No. xxxxxx626 for a traumatic injury sustained
on December 11, 2012 when he fell on ice while at work. OWCP granted appellant a schedule award for 50 percent
permanent impairment of the left lower extremity and 59 percent permanent impairment of the right lower extremity.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Id.; L.M., Docket No. 19-1490 (issued January 29, 2020); L.H., Docket No 18-1777 (issued July 2, 2019).

5

Id.

6

R.G., Docket No. 19-1755 (issued July 7, 2020); L.M., supra note 4.

2

IT IS HEREBY ORDERED THAT the September 21, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: September 22, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


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

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

Docket No. 16-0388
Issued: April 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 23, 2015 appellant timely appealed an October 28, 2015 merit decision and
a November 25, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has a ratable impairment of the left upper extremity
and bilateral lower extremities; and (2) whether OWCP properly denied further merit review
pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with her appeal. The Board is precluded from reviewing any evidence
that was not in the case record at the time OWCP issued its final decision. 20 C.F.R. § 501.2(c)(1). Therefore, this
additional evidence cannot be considered by the Board.

FACTUAL HISTORY
This case has previously been before the Board.3 Appellant, a 59-year-old former sales
and service associate, has an employment-related bilateral foot condition and a consequential left
shoulder injury. Her bilateral foot condition initially arose on or about May 1, 2004
(xxxxxx163). Appellant sustained a subsequent work-related bilateral foot injury on or about
March 30, 2009 (xxxxxx970). Her accepted conditions include bilateral plantar fasciitis,
foot-related chronic pain syndrome, and left rotator cuff tear.4 Appellant last worked in May
2009, and received a disability retirement effective July 13, 2009.
Appellant has received multiple schedule awards. On June 27, 2008 she received a
schedule award for two percent permanent impairment of the left leg due to a hind foot inversion
deficit. The award was based on the then-applicable fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2001). By
decision dated September 16, 2009, OWCP granted a schedule award for 11 percent permanent
impairment of the right lower extremity (RLE) and an additional 12 percent impairment of the
left lower extremity (LLE).5 The September 2009 award was under the sixth edition of the
A.M.A., Guides (2009) and included impairment due to both hind foot and ankle range of motion
(ROM) deficits. On October 25, 2012 OWCP granted a schedule award for two percent
impairment of the left upper extremity due to shoulder impingement syndrome.6 It also found
that appellant was not entitled to any additional impairment of the lower extremities under the
sixth edition of the A.M.A., Guides. The October 25, 2012 decision was based on the June 12,
2012 medical report of a Dr. Robyn Roberts.
In February 2013, appellant requested reconsideration of her October 25, 2012 schedule
award. OWCP later realized that it had mistakenly relied on June 12, 2012 findings of an
occupational therapist, rather than a qualified physician. As a result, it referred appellant for a
second opinion examination with Dr. B. Thomas Jeffcoat, a Board-certified orthopedic surgeon.7
In a report dated September 26, 2013, Dr. Jeffcoat found one percent bilateral lower
extremity impairment and no ratable (zero) impairment of the left upper extremity. In an
October 4, 2013 supplemental report, he indicated that appellant had no ratable (zero) lower
extremity impairment under Table 16-2, Foot and Ankle Regional Grid (LEI), A.M.A., Guides
501 (6th ed. 2009). With respect to her left upper extremity, Dr. Jeffcoat’s supplemental report
3

Docket No. 14-1021 (issued July 1, 2015).

4

Appellant’s left shoulder condition was the result of a January 1, 2010 off-premises fall, which she attributed to
left foot discomfort and pain. OWCP doubled her lower extremity occupational disease claims and designated claim
number xxxxxx163 as the master file.
5

The district medical adviser (DMA) found 14 percent LLE impairment. However, OWCP paid only 12 percent
in light of appellant’s June 27, 2008 two percent LLE award.
6

See A.M.A., Guides 402 (6th ed. 2009), Table 15-5, Shoulder Regional Grid. Appellant had undergone left
shoulder arthroscopic decompression on March 25, 2011.
7

Dr. Jeffcoat had previously examined appellant on July 9, 2009. At that time, he found two percent bilateral
lower extremity impairment under A.M.A., Guides 501 (6th ed. 2009), Table 16-2, Foot and Ankle Regional
Grid (LEI).

2

indicated that she had no impairment (zero) under Table 15-5, Shoulder Regional Grid, A.M.A.,
Guides 402 (6th ed. 2009).
In an October 11, 2013 report, the DMA concurred with Dr. Jeffcoat’s finding of no
ratable (zero) impairment of the upper and lower extremities under the sixth edition of the
A.M.A., Guides.
By decision dated October 16, 2013, OWCP modified its October 25, 2012 schedule
award to reflect no ratable (zero) impairment of the left upper extremity and bilateral lower
extremities under the sixth edition of the A.M.A., Guides.
It subsequently denied
reconsideration in a February 25, 2014 decision.
When this case was last on appeal, the Board set aside OWCP’s October 16, 2013
schedule award decision, and remanded the matter for further medical development. The Board
found that OWCP’s reliance on Dr. Jeffcoat’s second opinion evaluation was misplaced given a
number of noted deficiencies, including the doctor’s failure to adequately explain how he arrived
at his upper and lower extremity impairment ratings.8 The Board’s July 1, 2015 decision is
incorporated herein by reference.9
On remand, OWCP referred appellant for another second opinion examination.
Dr. Daniel P. Dare, a Board-certified orthopedic surgeon and OWCP-referral physician, provided
results on examination in an October 1, 2015 report. He reviewed appellant’s prior medical
records regarding her accepted conditions and the August 5, 2013 statement of accepted facts
(SOAF), which included information regarding her prior schedule awards, her date-of-injury job
duties, and various surgeries she had undergone with respect to her accepted conditions.10 As to
the shoulder, Dr. Dare found the examination “entirely unremarkable.” Appellant had full range
of motion, normal strength, and there was no instability. Additionally, Dr. Dare noted that there
was no evidence of impingement or tendinitis. He stated: “In essence, this was a normal
examination.” With respect to appellant’s feet, Dr. Dare noted that on inspection she had
calluses on the heel, which was indicative of ambulation on the heel. He also noted incisions
from her prior plantar fasciotomy, and commented that whenever he came close to touching her
skin, she would jump “implying … pain even at the very lightest touch.” Dr. Dare further noted
that when appellant ambulated, she made a point of walking on her toes. Appellant advised him
that she walked this way because she could not bear weight on her heel, but Dr. Dare noted that
when she thought she was unobserved, she did put weight on her heel.
Dr. Dare’s lower extremity diagnoses included history of chronic plantar fasciitis with
multiple extracorporeal shock treatments and subsequent plantar fasciotomy, and
8

The Board explained that once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that resolves the relevant issues in the case. Richard F. Williams, 55 ECAB 343,
346 (2004).
9

Supra note 3.

10

The record also included evidence regarding appellant’s cervical and lumbar degenerative disc disease;
conditions that have not been accepted under the current claims. In his October 5, 2015 report, Dr. Dare questioned
why this evidence was included given that the August 5, 2013 SOAF made no mention of any accepted spine
condition.

3

well-documented chronic pain behavior. With respect to appellant’s left upper extremity, he
diagnosed impingement with partial rotator cuff tear, which was “totally resolved following
arthroscopic surgery….” Dr. Dare believed that appellant had reached maximum medical
improvement. He found “no problems whatsoever with her left shoulder,” and therefore zero
impairment of the left upper extremity. Regarding appellant’s lower extremities, Dr. Dare noted
that there were no true objective findings. He further noted that she exhibited a lot of pain
behavior and possibly secondary gain behavior. In conclusion, Dr. Dare indicated that he could
not assign appellant any disability whatsoever to either lower extremity.
On October 27, 2015 the DMA, Dr. Howard P. Hogshead, a Board-certified orthopedic
surgeon, concurred with Dr. Dare’s findings. The DMA indicated that Dr. Dare’s October 5,
2015 second opinion evaluation was “thorough and objective.” He further noted that Dr. Dare
reviewed a large medical record, obtained a history, and examined appellant. The DMA
explained that there were no findings that provided a basis for an additional impairment of the
right or LLE or of the left upper extremity. Consequently, he found zero percent impairment of
the RLE, LLE, and left upper extremity.
In an October 28, 2015 decision, OWCP found that appellant had zero percent
impairment of the left upper extremity and zero percent impairment of the bilateral lower
extremities. The decision also noted that the current medical evidence demonstrated that she had
zero percent impairment of the right arm.11
Appellant timely requested reconsideration. She submitted the appeal request form that
accompanied the October 28, 2015 merit decision. Appellant also submitted a six-page
handwritten letter dated November 3, 2015. In her letter, she expressed disagreement with
Dr. Dare’s impairment rating. Lastly, appellant submitted a copy of OWCP’s October 4, 2010
notification that her bilateral lower extremity claim (xxxxxx970) had been expanded to include
chronic pain syndrome.
In a November 25, 2015 decision, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
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.12 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 under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for

11

The current claims have not been accepted for an injury involving the right upper extremity.

12

For total loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1) and
for a 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. Id. at § 8107(c)(2).

4

evaluating schedule losses.13 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).14
ANALYSIS -- ISSUE 1
In its July 1, 2015 decision, the Board remanded the case for further medical
development regarding the existence and extent of any left upper extremity and bilateral lower
extremity impairment due to appellant’s accepted bilateral foot condition and left shoulder
condition. On remand, OWCP referred her for a second opinion evaluation with Dr. Dare, who
found zero percent permanent impairment of her left upper extremity and zero percent permanent
impairment of the bilateral lower extremities. In an October 27, 2015 report, the DMA
concurred with Dr. Dare’s October 5, 2015 findings. Based on the latest medical evidence,
OWCP issued an October 28, 2015 merit decision finding that appellant had zero percent upper
or lower extremity impairment under the A.M.A., Guides (6th ed. 2009). The decision
effectively nullified appellant’s prior schedule awards dated September 16, 2009 and
October 25, 2012.
The Board finds that Dr. Dare’s October 5, 2015 report established that appellant has no
ratable impairment of the left upper extremity and bilateral lower extremities. He indicated that
her accepted left shoulder injury had “totally resolved following arthroscopic surgery….”
According to Dr. Dare, appellant’s bilateral shoulder examination was “entirely unremarkable.”
She had full range of motion, normal strength, no instability, and no evidence of impingement or
tendinitis. Dr. Dare characterized it as a “normal examination.” Accordingly, he found zero
percent impairment of the left upper extremity.
With respect to appellant’s lower extremities, Dr. Dare indicated that there were no true
objective findings. He also noted that she exhibited a lot of pain behavior and possibly
secondary gain behavior. In light of these factors, Dr. Dare did not assign any impairment to
either lower extremity. As previously noted, the DMA concurred with his October 5, 2015
findings. Since the case was last before the Board, appellant has not submitted any additional
medical evidence indicating that she currently has a ratable impairment under the A.M.A.,
Guides (6th ed. 2009). Accordingly, the Board affirms OWCP’s October 28, 2015 decision with
respect to her left upper extremity and bilateral lower extremities.
Appellant may request a schedule award or increase 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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a

13

20 C.F.R. § 10.404.

14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(February 2013).

5

matter of right.15 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.16 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.17 A timely application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (1) shows that OWCP erroneously
applied or interpreted a specific point of law; (2) advances a relevant legal argument not
previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.18 When a timely application for reconsideration does not meet
at least one of the above-noted requirements, OWCP will deny the request for reconsideration
without reopening the case for a review on the merits.19
ANALYSIS -- ISSUE 2
OWCP received appellant’s November 3, 2015 request for reconsideration on
November 9, 2015. Appellant submitted the appeal request form that accompanied the
October 28, 2015 merit decision, as well as a six-page handwritten letter. She expressed her
disagreement with Dr. Dare’s October 5, 2015 opinion. Appellant noted problems with her neck,
left shoulder, lower back, and both legs and feet. She also claimed that Dr. Dare hurt her back
during the October 5, 2015 examination. Lastly, appellant noted that she had undergone cervical
fusion and she believed that her neck condition should have been rated because it was related to
her left arm complaints.20
The Board notes that appellant’s cervical condition has not been accepted under the
current claims, and Dr. Dare’s October 5, 2015 upper extremity examination was “entirely
unremarkable.” The Board finds that appellant’s November 3, 2015 request for reconsideration
neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point
of law. Additionally, appellant did not advance any relevant legal arguments not previously
considered by OWCP. Accordingly, she is not entitled to a review of the merits based on the
first and second requirements under section 10.606(b)(3).21

15

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
16

20 C.F.R. § 10.607.

17

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
18

20 C.F.R. § 10.606(b)(3).

19

Id. at §§ 10.607(b), 10.608(b).

20

On October 5, 2009 appellant underwent C5-6 anterior cervical discectomy with interbody fusion.

21

20 C.F.R. § 10.606(b)(3)(i) and (ii).

6

Appellant also failed to submit any “relevant and pertinent new evidence not previously
consider by OWCP “with her November 3, 2015 request for reconsideration. She did not submit
any new medical evidence on reconsideration. All appellant submitted was a copy of OWCP’s
October 4, 2010 notification that her claim (xxxxxx970) had been expanded to include
foot-related chronic pain syndrome. Because she did not provide any “relevant and pertinent
new evidence,” she is not entitled to a review of the merits based on the third requirement under
section 10.606(b)(3).22 Accordingly, OWCP properly declined to reopen appellant’s case under
5 U.S.C. § 8128(a).
CONCLUSION
Appellant failed to establish a ratable impairment of the left upper extremity and bilateral
lower extremities. The Board further finds that OWCP properly denied her November 3, 2015
request for reconsideration, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 25 and October 28, 2015 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

Id. at § 10.606(b)(3)(iii).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Waukegan, IL, Employer
__________________________________________

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

Docket No. 07-175
Issued: July 24, 2007

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 October 24, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 3, 2006 nonmerit decision denying her request for further review
of the merits of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over this nonmerit decision. The last merit decision of record was the Office’s
July 19, 2005 decision regarding appellant’s wage-earning capacity. Because more than one
year has elapsed between the last merit decision and the filing of this appeal on October 24,
2006, the Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On May 5, 1980 appellant, then a 38-year-old office operations assistant, filed a traumatic
injury claim alleging that she sustained injury to her left foot and ankle on May 1, 1980 when her
foot became lodged under a security gate she was closing. She claimed that she sustained
another injury to her left foot, ankle and knee on May 2, 1980 when she stepped off a curb into a
low area and her left leg buckled. The Office accepted that appellant sustained a left medial
meniscus tear, left knee internal derangement, chronic left ankle strain and right knee posttraumatic arthritis, left big toe spur and L4-5 disc herniation secondary to her left leg condition.
In August 1980 appellant underwent a left medial meniscectomy which was authorized by the
Office.
Appellant received schedule awards for a 51 percent permanent impairment of her left
leg. In an August 12, 1988 decision, the Office terminated appellant’s compensation based on
the opinion of Dr. Robert J. Sawchyn, a Board-certified orthopedic surgeon who served as an
Office referral physician. In a decision dated and finalized June 22, 1989, an Office hearing
representative reversed the Office’s termination of appellant’s compensation.2
In August 1996 the Office referred appellant to Dr. Louis C. Sfreddo, a Board-certified
orthopedic surgeon, for further evaluation of her medical condition. On August 19, 1996
Dr. Sfreddo stated that appellant was capable of performing the work duties she had when she
was injured on May 1, 1980. On September 30, 1996 Dr. Kristi, an attending Board-certified
neurologist, posited that appellant was restricted from performing “any type of physical work
whatsoever.”
The Office determined that there was a conflict in the medical evidence between
Dr. Sfreddo and Dr. Kristi regarding appellant’s ability to work and referred appellant to
Dr. James Elmes, a Board-certified orthopedic surgeon, for an impartial medical examination
and an opinion on the matter. On August 26, 1997 Dr. Elmes determined that appellant could
perform sedentary work for 20 hours per week which required lifting up to 20 pounds, but that
she should avoid kneeling, bending and twisting. He indicated that appellant could not stand for
more than 10 minutes at a time or walk for more than 15 to 20 minutes at a time.
In an April 23, 1999 report, Dr. Donald Troyer, an attending Board-certified family
practitioner, indicated that appellant had been totally disabled since 1980. He diagnosed chronic
reflex sympathetic dystrophy of the left foot and ankle, deteriorating lumbar discs and left
clavicle, fibromyalgia and possible lupus. In a May 26, 1999 report, Dr. James A. Hill, an
attending Board-certified orthopedic surgeon, stated that he had seen appellant since 1985 and
that her examination on May 26, 1999 was essentially unchanged since her last visit in 1997. He
indicated that on examination appellant exhibited crepitus on flexion and extension of her left
knee with diffuse tenderness, paralumbar muscle spasms with negative straight leg testing and
full range of motion of both shoulders with pain on resistance of her supraspinatus. Dr. Hill
recommended that appellant “continue with her prior work restrictions” without specifying the
nature of such restrictions.
2

In a July 31, 1995 decision, the Board affirmed the Office’s August 15, 1994 determination regarding
appellant’s rate of pay for compensation.

2

In March 2003 appellant’s vocational rehabilitation counselor determined that appellant
was able to work in the constructed position of receptionist and that the job was reasonably
available in her commuting area. The position was sedentary in nature and required lifting up to
10 pounds.
In a July 30, 2003 report, Dr. Hill stated that appellant had full range of motion of both
shoulders with a positive impingement sign and pain on resistance of her supraspinatus and
indicated that she had bilateral shoulder impingement syndrome.
On March 11, 2004 the Office advised appellant of the proposed adjustment of her
compensation based on its determination that she could work in the constructed position of
receptionist for 20 hours per week and that this position represented her wage-earning capacity.
Appellant argued that she was not physically or vocationally capable of working as a
receptionist. In an April 20, 2004 decision, the Office adjusted appellant’s compensation
effective April 21, 2004 based on her ability to work as a receptionist for 20 hours per week.
Appellant argued that her medical condition had worsened and that she was unable to
work as a receptionist. She also argued that the adjustment of her compensation was improper
because the Federal Employees’ Compensation Act dictates that no Office compensation shall be
paid below the minimal scale for an employee at the GS-1 pay grade. In a July 19, 2005
decision, the Office denied modification of its April 20, 2004 wage-earning capacity decision.
In a February 23, 2006 letter, appellant, through her husband, requested reconsideration
of her claim. She argued that the recent medical evidence of record showed that she was totally
disabled and that the Act dictates that no Office compensation shall be paid below the minimal
scale for an employee at the GS-1 pay grade.
Appellant submitted a February 2, 2006 report in which Dr. Hill stated that he had not
seen appellant between August 29, 2001 and February 2, 2006. He indicated that appellant
presented on February 2, 2006 with a chief complaint of left shoulder pain. Dr. Hill stated that
on examination appellant exhibited full range of passive motion of both shoulders with active
abduction on the left limited to 110 degrees and also showed pain on resistance of her left
supraspinatus and weakness on left-sided abduction and external rotation. He noted that
appellant had no knee effusion and full range of knee motion, but that she had crepitus on flexion
and extension of her left knee with diffuse tenderness. Dr. Hill stated that she had paralumbar
muscle spasms with negative straight leg testing and no neurological deficit. He indicated that
appellant had an unsuccessful left rotator cuff repair, post-traumatic arthritis of her left knee and
lumbar disc disease and encourage her to continue her home exercise regimen.3
Appellant also submitted the findings of March 13, 2003 magnetic resonance imaging
(MRI) testing which showed she had degenerative changes at L4-5 and L5-S1. She resubmitted
an April 23, 1999 report of Dr. Troyer and a May 26, 1999 report of Dr. Hill.

3

Appellant submitted a February 2, 2006 note in which Dr. Hill indicated that she needed a motorized wheelchair
and a September 30, 2004 note in which Dr. Kenneth K. Harris, an attending osteopath, prescribed a large wrist
splint.

3

In a May 3, 2006 decision, the Office denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).4
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case9 and that the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case.10
ANALYSIS
The Office accepted that appellant injured herself on May 1, 1980 when her left foot
became stuck under a security gate and on May 2, 1980 when she stepped off a curb into a low
area. The Office accepted that she sustained a left medial meniscus tear, left knee internal
derangement, chronic left ankle strain, and right knee post-traumatic arthritis, left big toe spur,
and L4-5 disc herniation secondary to her left leg condition. In an April 20, 2004 decision, the
Office adjusted appellant’s compensation effective April 21, 2004 based on her ability to work in
the constructed position of receptionist for 20 hours per week. The position was sedentary in
nature and required lifting up to 10 pounds. The Office later denied modification of its April 20,
2004 wage-earning capacity determination.
In support of her reconsideration request, appellant submitted a February 2, 2006 report
of Dr. Hill, an attending Board-certified orthopedic surgeon, who indicated that he had not seen
appellant since August 29, 2001 and noted that she presented on February 2, 2006 with a chief
4

Appellant submitted additional evidence after the Office’s decision, but the Board cannot consider such evidence
for the first time on appeal. See 20 C.F.R. § 501.2(c).
5

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.607(a).

8

20 C.F.R. § 10.608(b).

9

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

10

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

4

complaint of left shoulder pain. Dr. Hill stated that on examination appellant exhibited full range
of passive motion of both shoulders with active abduction on the left limited to 110 degrees and
also showed pain on resistance of her left supraspinatus and weakness on left-sided abduction
and external rotation. He noted that appellant had no knee effusion and full range of knee
motion, crepitus on flexion and extension of her left knee with diffuse tenderness, and
paralumbar muscle spasms with negative straight leg testing and no neurological deficit.
The Board notes that the submission of the February 2, 2006 report of Dr. Hill would not
require reopening of appellant’s claim for further review of the merits because the report is not
relevant to the main issue of the present case.11 Dr. Hill did not provide any opinion on
appellant’s ability to work and therefore his report is not relevant to the question of whether
appellant had shown she could not perform the constructed position of receptionist for 20 hours
per week, either around the time of the April 21, 2004 adjustment of her compensation or at any
point thereafter.12 The February 2, 2006 note in which Dr. Hill indicated that appellant needed a
motorized wheelchair, the September 30, 2004 note in which Dr. Harris, an attending osteopath,
prescribed a large wrist splint, and the report of March 13, 2003 MRI testing also are not relevant
because they do not address the main issue of this case.
Appellant resubmitted a May 26, 1999 report of Dr. Hill and an April 23, 1999 report of
Dr. Troyer, an attending Board-certified family practitioner, which had previously been
considered by the Office. The submission of these documents would not require reopening of
appellant’s case for further review of the merits because the Board has held that the submission
of repetitious evidence or argument does not constitute a basis for reopening a case. Appellant
argued that the Act dictates that no Office compensation shall be paid below the minimal scale
for an employee at the GS-1 pay grade, but the Office already considered and rejected this
argument.
Appellant has not established that the Office improperly denied her request for further
review of the merits of its July 19, 2005 decision under section 8128(a) of the Act, because the
evidence and argument she submitted did not to show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

See supra note 10 and accompanying text.

12

Moreover, it should be noted that Dr. Hill’s report primarily concerns appellant’s shoulder condition and the
Office has not accepted that appellant had a work-related shoulder condition or a shoulder condition which
preexisted her May 1980 employment injuries.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 3, 2006 decision is affirmed.
Issued: July 24, 2007
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

6