United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bay Pines, FL, Employer
__________________________________________

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1210
Issued: November 18, 2013

Case Submitted on the Record

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

JURISDICTION
On April 22, 2013 appellant filed a timely appeal from an Office of Workers’
Compensation Programs (OWCP) merit decision dated March 5, 2013. 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 sustained a recurrence of disability for the period June 22
to August 21, 2012.
FACTUAL HISTORY
On January 20, 2009 appellant, then a 52-year-old supervisory police officer, filed a
claim under case file number xxxxxx476,for a low back injury which occurred while he was
1

5 U.S.C. § 8101 et seq.

lifting weights. OWCP denied the claim on the grounds that he failed to submit sufficient
medical evidence to establish a causal relationship between his claimed injury and the weight
lifting incident.On March 9, 2010 appellant filed a claim under case file number xxxxxx374,
alleging a lowback injury on January 19, 2010 when he stumbled while descending a flight of
stairs. OWCP accepted this claim for a lumbar strain. Appellant returned to full duty on
March 21, 2010.
Appellant filed a claim for benefits under case file number xxxxxx315. He alleged that he
injured his lower back while lifting a wheelchair into a car trunk. The claim was handled
administratively and appellant was paid forlimited medical expenses. Appellant returned to
work on May 25, 2011.2
On July 8, 2012 appellant filed a Form CA-7 claim for wage-loss compensation from
June 22 to August 21, 2012.
On July 8, 2012 appellant filed a Form CA-2 claim for a recurrence of disability, alleging
that his inability to work as of June 21, 2012 was caused or aggravated by his accepted
January 19, 2010 employment injury. He stated that he experienced immediate low back pain
when he bent over to pick up a pair of shoes. The employing establishment controverted the
claim, stating that appellant was notified on June 19, 2012 that he would be undergoing a
psychological fitness-for-duty examination and would have his police credentials removed.It
advised that he did not return to work after this date. The employing establishment submitted a
June 19, 2012 memorandum relieving appellant from his police duties and suspending his law
enforcement authority due to stress-related issues. A fitness-for-duty examination was directed.
By letter dated July 17, 2012, OWCP advised appellant that it required additional factual
and medical evidence to support that his disability as of June 22, 2012 was causally related to his
accepted lowback condition. It asked him to submit medical evidence supporting his contention
that commencingJune 22, 2012 he had been unable to work in any capacity as a result of his
accepted back condition.
By letter dated July 23, 2012, OWCP advised appellant that the circumstances he was
describing more closely represented a new traumatic injury. It recommended that he consider
filing a new claim for a traumatic injury.
On August 14, 2012 appellant filed a Form CA-1 claim fortraumatic injury, alleging that
on June 13, 2012 he sustained a stress-related condition, anxiety and depression causally related
to a hostile work environment created by management. He stated that he stopped work due to
this condition on June 20, 2012.3
In an April 13, 2012 report, received by OWCP on August 20, 2012, Dr. Adam Berko, an
osteopath, stated that appellant had the following diagnoses:natal hernia, cervical spine pain,
neuritis, lumbar spine pain, diabetic neuropathy, foot pains, sensory hearing loss, sleep apnea,
2

The claim form for this injury is not part of the current record.

3

Counsel advised OWCP’s hearing representative that he intended to pursue the recurrence claim.

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reflux,dyslipidemia, hypertension, type 2 diabetes, hemorrhoids and allergic rhinitis.Due to these
multiple illnesses appellant was experiencing pain on a daily basis that prevented him from
performing his work duties. Dr. Berko stated that appellant was unable to stand or sit for more
than 15minutes at a time, which affected his work performance.He asserted that while
appellant’s conditions were not likely to resolve, they might be manageable to the point where he
could perform duties in an appropriate and effective manner.
On June 29, 2012 Dr. Berko stated that he examined appellant that date. He advised that
appellant was unsure when he would be able to return to work due to his medical issues.
In a hand-written July 3, 2012 report, Dr. Arunchalam Jothivliayarani, a Board-certified
family practitioner, stated on examination that appellant had complaints of right-sided lower
back pain and tenderness. Appellant had a lumbar sprain, diabetes, controlled hypertension,
obesity and a transient ischemic attack. Dr Jothivliayarani related that appellant experienced a
syncopal event in mid-June.
Appellant submitted an employing establishment light-duty form report dated
July 21, 2012. As a result of an examination in connection with an on-the-job injury, he was
found to have a disability rendering him unable to fully perform the duties of his position. The
report outlined work restrictions for appellant.
By decision dated August 21, 2012, OWCP denied appellant’s claim for a recurrence of
disability.
On August 24, 2012 appellant requested an oral hearing, which was held on
December 12, 2012. He did not submit any additional medical evidence.
By decision dated March 5, 2013, OWCP’s hearing representative affirmed the
August 21, 2012 decision.
LEGAL PRECEDENT
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury, and who supports that conclusion with sound medical
reasoning.4 A recurrence of disability is defined as the inability to work caused by a spontaneous
change in a medical condition which results from a previous injury or illness without an
intervening injury or new exposure in the work environment that caused the illness.5

4

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. §10.121(a).

5

See 20 C.F.R. § 10.5(x); Donald T. Pippin, 54 ECAB 631 (2003).

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ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence to establish a
recurrence of disability for work as of June 22, 2012due to his January 19, 2010 work injury.
For this reason, appellant has not discharged his burden of proof.He has failed to submit
evidence to show that he sustained a worsening of his accepted low back strain as of
June 22, 2012. As appellant did not submit sufficient medical evidence to establish that he
sustained a recurrence of hisJanuary 19, 2010 work injury, OWCP properly denied his claim for
a recurrence of disability.
In an April 13, 2012 report, Dr. Berko stated that appellant had multiple conditions which
were causing him pain and affected his ability to perform his job. He stated generally that
appellant’s conditions might improve and could be managed. Dr. Berko did not specifically
address whether appellant became disabled on/or about June 22, 2012 due to a change in his
accepted low back condition. He stated in a June 29, 2012 report that appellant was uncertain as
to when he would be able to return to work in light of his medical issues.
Dr. Jothivliayaransubmitted a July 3, 2012 report. He noted complaint of low back pain
and tenderness on examination and diagnosed lumbar sprain, diabetes, controlled hypertension,
obesity and a transient ischemic attack. Dr. Jothivliayaran advised that appellant experienced a
syncopal event in mid-June. He did not address the issue of disability or how it related to the
accepted low back condition.
Theopinions of Dr. Berko and Dr. Jothivliayarani on causal relationship are of limited
probative value. They did not provide adequate medical rationale addressing appellant’s
disability for work.6 They did not describe how appellant’s accepted lower back condition was
competent to cause a recurrence of disability as of June 22, 2012. Their opinions arealso of
limited probative value as the reportsare generalized in nature and equivocal. As noted,
appellant has the burden of proof to submit rationalized medical evidence establishing the
relationship of the claimed recurrence to the original injury. The weight of the medical opinion
is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.7
Appellant has not submitted sufficient reasoned opinion from a physician that explains how his
disability commencing June 22, 2012 was causally related to the January 19, 2010work injury.
For these reasons, the medical evidence is insufficient to establish a recurrence of a medical
condition causally related to the acceptedlumbar strain injury. The Board will affirm OWCP’s
March 5, 2013 decision.

6

William C. Thomas, 45 ECAB 591 (1994).

7

SeeAnn C. Leanza, 48 ECAB 115 (1996).

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CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
recurrence of disability as of June 22, 2012 causally related to his accepted lumbar strain
condition.
ORDER
IT IS HEREBY ORDERED THATthe March 5, 2013 decision of the Office of
Workers’ Compensation Programsis affirmed.
Issued: November 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

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

Docket No. 17-1132
Issued: November 22, 2017

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 May 2, 2017 appellant, through counsel, filed a timely appeal from a February 27,
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 this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to an accepted November 23, 2014 employment incident.
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.

On appeal counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior decision are incorporated herein by reference. The facts relevant to the instant appeal
are set forth below.
On December 11, 2014 appellant, then a 59-year-old first assistant engineer, filed a
traumatic injury claim (Form CA-1) alleging that on November 23, 2014 he injured his lower
back at work when he slipped on fuel oil that had spilled on a deck. He stopped work on
November 25, 2014.
OWCP initially denied the claim by decision dated February 20, 2015. It found that
appellant had failed to establish a factual basis for his claim and had not provided medical
evidence sufficient to establish that the alleged November 23, 2014 employment incident caused
a diagnosed medical condition. Appellant requested a review of the written record. By decision
dated August 19, 2015, an OWCP hearing representative affirmed the February 20, 2015
decision as modified.4 He found that appellant had established that the November 23, 2014
incident occurred as alleged, but he had not established that a diagnosed medical condition was
causally related to the accepted employment incident.
On February 10, 2016 appellant, through counsel, appealed to the Board. By decision
dated June 3, 2016, the Board affirmed the August 19, 2015 decision, finding that appellant had
failed to submit rationalized medical opinion evidence to establish that the accepted
November 23, 2014 employment incident had caused or contributed to the claimed back injury.5
OWCP received progress notes and industrial work status reports dated June 29 to
November 30, 2016 in which Dr. Peter B.T. Lum, an attending Board-certified physiatrist, noted
a history of the November 23, 2014 employment incident, reported findings on physical
examination, and reviewed diagnostic test results. Dr. Lum assessed lumbar muscle strain,
lumbosacral joint sprain, neck muscle strain, neck sprain, cervical vertebral subluxation,
lumbosacral vertebral subluxation at the L5-S1 level, and lumbar radiculopathy. He opined that
based on the history, mechanism of injury, and his examination, appellant’s injury was more than
likely caused by the alleged work incident and therefore was an industrial-related injury.
Dr. Lum placed appellant off work and released him to return to modified work on intermittent
dates through February 11, 2017. He advised that if modified activity was not accommodated by
the employing establishment then he considered appellant to be temporarily and totally disabled
from his regular work.

3

Docket No. 16-0606 (issued June 3, 2016).

4

In the August 19, 2015 decision, OWCP’s hearing representative noted that appellant had filed a prior claim
assigned OWCP File No. xxxxxx181 for a back condition.
5

Supra note 3.

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By letter dated January 3, 2017, appellant, through counsel, requested reconsideration on
January 3, 2017. He submitted a December 10, 2016 report from Dr. Neil Allen, Board-certified
in internal medicine and neurology. Dr. Allen noted a history of the November 23, 2014 work
incident and reviewed appellant’s medical records.6 He requested that appellant’s claim be
updated to include strain/sprain of the cervical spine and aggravation of lumbar spondylosis with
radiculopathy. Dr. Allen related that appellant had denied symptoms related to these conditions
before the November 23, 2014 trauma and that the incident was a rapid acceleration and
deceleration event resulting in the overstretching of ligaments and musculature of the cervical
and lumbar spines, beyond their normal range, resulting in injury. As a result of the
November 23, 2014 work incident, he diagnosed cervical spine sprain/strain. Typical symptoms
for muscle strains and joint sprain included swelling, tenderness, and painful and/or reduced
range of motion. Dr. Allen maintained that appellant’s medical records reflected consistent
documentation of cervical spine tenderness and reduced and painful range of motion. He
asserted that age-related changes in his spine, combined with the November 23, 2014 work
incident, contributed to the manifestation of a symptomatic lumbar spondylosis.
In support of his opinion, Dr. Allen referenced a study from The Journal of Biomechanics
titled “Lumbar facet pain: Biomechanics, neuroanatomy and neurophysiology” (September
1996). Based on the study’s findings, Dr. Allen advised that the facet joint was a heavily
innervated area subject to high stress and strain. He related that the resulting tissue damage or
inflammation was likely to cause the release of chemicals irritating to the nerve endings in these
joints, resulting in low back pain. Dr. Allen noted that appellant described a slipping incident
that caused a forceful lumbar extension event resulting in maximal loading and injury to the facet
joints of the spine. He advised that inflammation within the injured joints could also result in
compression of adjacent neural structures and the manifestation of radicular symptoms such as
those described by appellant and documented on examination. Typical symptoms in a case of a
symptomatic lumbar spondylosis included low back pain and lower extremity radicular
symptoms, which were appellant’s complaints as documented by his treating physicians. In
addition, he had lumbar facet and paraspinal tenderness, diminished reflexes on the right, and
reduced lumbar range of motion due to pain on examination as expected. Dr. Allen advised that
these findings were consistent with lumbar spondylosis with radiculopathy. He concluded that
appellant’s injuries, resulting from the acute trauma he suffered while on duty on November 23,
2014 were both reasonable and expected based upon the mechanism described by him and
documented within medical records dating back to November 2014.
OWCP received an additional progress note dated January 25, 2017 from Dr. Lum who
restated the history of the November 23, 2014 work incident, examined appellant, and reviewed
diagnostic test results. Dr. Lum reiterated his diagnoses of lumbar muscle strain, lumbosacral
joint sprain, and lumbosacral vertebral subluxation at the L5-S1 level. He also reiterated his
opinion that appellant’s injury was “more than likely caused by the … alleged work injury and
therefore is an industrial-related injury.” Dr. Lum found that appellant was fit for duty. In an
industrial work status report also dated January 25, 2017, he released appellant to return to work
at full capacity.

6

There is no indication that Dr. Allen examined appellant.

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By decision dated February 27, 2017, OWCP denied modification of its denial of
appellant’s traumatic injury claim. It found that the medical evidence submitted was insufficient
to establish an injury causally related to the accepted November 23, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence7 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.9
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.10
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.11 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.12 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury caused or aggravated by the accepted November 23, 2014 employment incident.
Appellant has failed to submit sufficient medical evidence to establish a back injury causally
related to the accepted employment incident.
Appellant submitted a December 10, 2016 report from Dr. Allen who related a history of
the accepted November 23, 2014 employment incident and reviewed appellant’s medical
7

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

8

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

10

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

11

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
12

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

13

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

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records. Dr. Allen advised that appellant’s claim should be accepted for cervical spine
strain/sprain and aggravation of lumbar spondylosis. He opined that the diagnosed conditions
were caused by the work incident and age-related changes in the spine. Although Dr. Allen’s
report contains an accurate description of the November 23, 2014 employment incident and an
affirmative statement of causation, it is based upon an inaccurate history, as he recites a history
of a “denial of symptoms related to [diagnosed] conditions prior to the acute trauma sustained on
November 23, 2014.” However, the record establishes a prior claim14 for a spinal condition,
which includes treatment with Dr. Joseph G. Morelli, D.C., for multiple spinal subluxations and
a claimed period of total disability. Medical opinions based on an inaccurate history are of little
probative value.15
Furthermore, Dr. Allen did not conduct a physical examination.16 Instead, he relied on
medical literature and the examination findings of appellant’s treating physicians in attributing
appellant’s medical conditions to the accepted work incident. Dr. Allen also did not adequately
explain how the referenced medical literature applied to appellant’s situation.17 The Board finds
that, although Dr. Allen provided some support for causal relationship, this report is insufficient
to establish the claim as he failed to provide an accurate medical history as to appellant’s prior
spinal conditions and claimed disability.
The remaining medical evidence is also insufficient to establish a causal relationship
between appellant’s alleged injury and the November 23, 2014 employment incident. Dr. Lum’s
progress notes found that appellant had lumbar muscle strain, subsequent, lumbosacral joint
sprain, subsequent, neck muscle strain, subsequent, neck sprain, subsequent, and cervical
vertebral subluxation, subsequent, lumbosacral vertebral subluxation at the L5-S1 level, and
lumbar radiculopathy. He opined that his injury was “more than likely” due to the accepted
November 23, 2014 work incident. However, Dr. Lum’s opinion on causal relation is
speculative. The Board has held that medical opinions which are speculative or equivocal are of
diminished probative value.18 Furthermore, a mere conclusion without the necessary rationale
explaining how work activities could result in the diagnosed condition is insufficient to meet
appellant’s burden of proof.19 The Board finds that Dr. Lum’s reports fail to establish causal
relationship between the accepted incident and the diagnosed conditions.
14

Supra note 4.

15

See Douglas M. McQuaid, 52 ECAB 582 (2001).

16

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination is one of the
factors used to determine the weight to be given to a medical report).
17

See Roger G. Payne, 55 ECAB 535 (2004) (excerpts from publications have little probative value in resolving
medical questions unless a physician shows the applicability of the general medical principles discussed in the
articles to the specific factual situation in a case).
18

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related, or could be related are speculative and diminish the probative
value of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
19

See D.P., Docket No. 17-0148 (issued May 18, 2017); Beverly A. Spencer, 55 ECAB 501 (2004).

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Appellant’s belief that the accepted employment incident caused or aggravated his
condition is insufficient, by itself, to establish causal relationship.20 The issue of causal
relationship is a medical one and must be resolved by a probative medical opinion from a
physician. The Board finds that there is insufficient medical evidence of record to establish a
back injury causally related to the November 23, 2014 employment incident. Appellant,
therefore, did not meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a back
injury causally related to the accepted November 23, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2017
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

20

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 16-0194
Issued: July 24, 2018

Case Submitted on the Record

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

JURISDICTION
On November 12, 2015 appellant filed a timely appeal from an October 29, 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 the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an aggravation of
a preexisting emotional condition due to factors of her federal employment.
FACTUAL HISTORY
On November 21, 2012 appellant, then a 50-year-old program analyst, filed an
occupational disease claim (Form CA-2) alleging that she developed an aggravation of her
preexisting post-traumatic stress disorder (PTSD), major depression, anxiety, and panic disorder.
1

5 U.S.C. § 8101 et seq.

She attributed her condition to a meeting on March 26, 2012 with her supervisor and two male
coworkers. Appellant alleged that she was subjected to verbal intimidation, yelling, and “close
proximity tactics.” On July 26, 2012 she had a confrontation with a coworker. Appellant’s
supervisor noted that appellant returned to work the following day and continued her duties but
she refused to execute certain duties including certification of contractor invoices.
Appellant, in a November 21, 2012 statement accompanying her Form CA-2, noted that
she teleworked four days a week as a reasonable accommodation for her PTSD, anxiety disorder,
panic disorder, major depression, degenerative disc disease, and chronic fatigue syndrome with
cognitive impairment. Her job duties included serving as the contracting officers’ representative
(COR) for program office contracts. Appellant’s supervisor, M.S., directed appellant to come
into the office on March 26, 2012 to discuss invoice approvals in person. On that date, appellant
overheard a coworker and assigned work lead, S.D., informing appellant’s supervisor that all of
the information appellant provided was “nothing but smoke and mirrors and this was [sh*t].”
Shortly after the meeting began, S.D. and D.H. along with coworkers began raising their voices
and yelling at appellant in response to her attempted explanation of the contractual, regulatory,
and legal aspects of not approving a particular invoice. Appellant asserted that S.D.’s voice was
angry, brusque, and intimidating. S.D. reached over and touched her arm and appellant had a
flashback of an earlier incident of workplace violence. Appellant asked, “Please don’t touch
me.” She alleged that this aggravated her underlying PTSD, anxiety and panic disorders.
Appellant asserted that she had almost constant panic attacks on March 27, 2012 at work
as S.D. worked directly across from her. She told M.S. that she felt unsafe sandwiched between
S.D. and D.H. On March 28, 2012 M.S. verbally threatened her. Appellant stopped work for
three weeks based on her doctor’s orders, and when she returned to work she requested to be
moved away from S.D. M.S. could not find a suitable workspace, and constantly pressured
appellant from May 7, 2012 to come into the employing establishment on her telework days.
Appellant was hospitalized on June 6, 2012 for chest pain and high blood pressure which she
attributed to harassment, intimidation, and work stress. On July 26, 2012 she reported to M.S.
that S.D. angrily appeared in the opening of her workspace “in a physically confrontational
stance” and prevented her from exiting. Appellant had asked him if it “was necessary to talk
over my cube [to a coworker] on the other side of me versus walking over to speak to him.”
Appellant, M.S., her second line supervisor, K.F., and B.B., met and agreed that S.D.
should move based on safety concerns, noise, and the effects on her medical condition. On
August 1, 2012 the employing establishment reversed this decision, and offered appellant two
workspace options. Appellant asserted that neither option was medically suitable. She stopped
work on August 16, 2012 and returned on October 30, 2012 working part time from home only.
In a development letter dated December 14, 2012, OWCP informed appellant that the
evidence submitted was insufficient to establish her emotional condition claim and advised her
of the type of factual and medical evidence required. It attached a questionnaire for her
completion and requested that she provide additional factual and medical evidence, including a
report from a qualified physician containing a medical diagnosis and an opinion supported by a
medical explanation regarding the cause of her emotional condition. In a similar letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor regarding the accuracy of appellant’s allegations, as

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well as information on the duties and physical requirements of appellant’s job. OWCP afforded
both appellant and the employing establishment 30 days to provide the requested information.
Appellant responded to OWCP’s request and submitted a December 20, 2011
memorandum in which M.S. agreed to appellant’s accommodation request to telework four days
a week, that S.D., appellant’s assigned work lead, would not be present during counseling,
although another witness would be present, and that appellant could wear headphones for noise
suppression. M.S. informed appellant that she was no longer the COR for contracts and that her
assigned work would concern contracting documentation. M.S. approved appellant’s telework
documents on January 5, 2012 and indicated that her day in the office should be every Thursday.
Appellant agreed to daily e-mails when she worked for the day.
Appellant also submitted a series of e-mails dated March 9, 13, and 14, 2012 between
herself, S.D., and M.S. regarding proper invoices. S.D. opined that the invoices submitted by
T.A., a contractor, was sufficient while appellant advised that she was not comfortable certifying
such invoices as all the information was not included. Appellant was adamant that T.A.’s
invoices were improper. They disagreed on the interpretation of the provision involved. S.D.
repeatedly asked appellant to process them. Appellant included M.S. on the e-mail
correspondence and opined that the invoices needed to be rejected, corrected, and resubmitted.
M.S. directed her not to reject them.
In a March 20, 2012 e-mail exchange, M.S. requested that appellant report to the
employing establishment. Appellant declined, noting that she needed to use leave to care for her
sister. M.S. requested that she provide in writing her reasons for rejecting the invoices. He
directed appellant to report to the employing establishment four days a week because they were
four months behind in paying invoices. On March 21, 2012 appellant asked if M.S. was
revoking her reasonable accommodation and advised that she was required to follow the
regulations in completing her job. M.S. responded that he had overstepped his authority in
agreeing that she could telework four days a week and noted that, if the work was not
accomplished, she would have to come into the employing establishment until the matter was
resolved.
In a March 27, 2012 e-mail, appellant informed M.S. that she no longer felt safe as S.D.
made her tense and she was afraid to turn her back to him. M.S. noted that, while both appellant
and S.D. raised their voices in the meeting, there was no threatening situation.
On the morning of March 28, 2012, appellant and M.S. engaged in another e-mail
exchange about novation agreements and payments due contractors. M.S. directed appellant to
approve invoices before an approved novation agreement at 12:27 p.m. At 2:07 p.m., on
March 28, 2012, M.S. noted that appellant had properly rejected three invoices due to lack of
proper shipment number, but advised that the line of accounting was not required for future
invoices. M.S. also noted that General Services Administration (GSA) found that the absence of
a novation agreement was not an appropriate reason to reject an invoice. In an e-mail sent on
March 28, 2012 at 3:49 p.m., K.B., a contracting officer, instructed appellant that the invoices
should not be submitted until the novation agreement was signed. Appellant requested to
telework on Wednesday, March 28, 2012 and M.S. agreed.

3

In a March 29, 2012 e-mail, appellant informed M.S. that she felt that she had no choice,
but to come into the employing establishment based on his March 20, 2012 e-mail. She noted
that he was aware of her PTSD and that he chose to create an environment to use close proximity
tactics to coerce her to disregard regulatory requirements and approve invoices that were
improper. Appellant protested being placed between S.D. and D.H. noting the raised voices and
S.D.’s touch. She alleged that M.S. threatened personnel action if she did not approve the
invoices, that she was intimidated, and that the contracting officer had instructed her that a
signed novation agreement was necessary. Appellant alleged reprisal.
Appellant provided a series of August 1, 2012 e-mails between herself, an Equal
Employment Opportunity (EEO) counselor, and M.S. regarding her prospectively separating her
from S.D. M.S. informed appellant that S.D. did not want to move his duty station and proposed
other options. Appellant asserted that alternative locations would not work due to noise. She
alleged that the reversal of S.D.’s move allowed him to intimidate her, talk over her head, and
implied that her concerns did not matter. Appellant alleged that the employing establishment
was attempting to back her into a corner. She denied yelling, but noted that she was using her
headphones at the time.
Dr. Kusuma K. Nanduri, an internist, diagnosed tension headaches and acute stress on
April 17, 2012. Appellant also provided evidence from a social worker.
Appellant provided additional factual information on January 11 and 12, 2013. She noted
her prior claim for an emotional condition arising from her work in 2008.2 Appellant repeated
her prior allegations about the March 26, 2012 meeting with S.D. and D.H. M.S. and S.D.
questioned her knowledge and judgment. Appellant also attributed her condition to work noise,
alleging “constant chatter” of coworkers. She noted that the employing establishment initially
agreed to move S.D., but reversed that decision and offered her additional workstation locations.
She asserted that the offered locations were not medically appropriate. After appellant’s return
to work on October 30, 2012, M.S. continually pressured her to come into the employing
establishment. Appellant asserted that he took her Blackberry, and that he continued to instruct
her to interact with S.D. M.S. berated her due to her cognitive impairment noting that she was a
GS-14, but was only completing GS-9 level work.
Appellant provided her telework request and approval form which indicated that telework
was provided as reasonable accommodation for her preexisting medical conditions. The
agreement indicated that appellant would telework four days a week and that she would report to
the employing establishment on Thursdays.
Appellant submitted transcripts of appellant’s March 26, 2012 meeting with M.S. and
S.D. as well as the March 28, 2012 meeting between M.S., appellant, and other female
coworkers. During the March 26, 2012 meeting M.S. and S.D were of the opinion that the
invoices should be paid. M.S. stated, “I [a]m happy to do a memo to say this is why we need to
pay these. If not, they can go to see [appellant’s second line supervisor, K.F.] you and I [wi]ll
have to meet with him and explain why this is until we have somebody else approving invoices.”
When appellant left the meeting to gather documents, S.D. stated, “All this is smoke and mirrors
2
The 2008 claim, File No. xxxxxx936, is not before the Board in this appeal. An appeal involving that claim is
proceeding separately before the Board under Docket No. 16-0193.

4

because she still has n[o]t listed them item by item. This is wrong and it [i]s all this [sh*t] that
[i]s why I have been trying to get her to do one at a time.” S.D. forcefully informed appellant
that she was not a contracting officer and that she was working in the program office. Appellant
noted that she was hired for her contracting knowledge. She asked that S.D. not touch her. M.S.
stated on the March 28, 2012 transcript, “Okay, on this one, I [a]m not going to push -- I [a]m
not going to push this out -- out, and we will discuss that on perhaps a personnel action, but there
is not motivation not to --…. So by what … GSA has said that this is not a reason not to pay
them.”
Appellant provided e-mails from M.S. dated December 27, 2012 which noted that
appellant was a GS-14 and indicated that he was concerned with her progress and effort on the
assigned task. M.S. noted that the assigned task was a simple one which he would expect at GS9 to accomplish. Appellant responded to M.S. on December 28, 2012 and requested that he
answer her questions. She noted that she was aware that she was a GS-14, but informed M.S.
that she had a cognitive impairment and medical conditions that, when exacerbated, impacted her
focus, concentration, and memory. On December 28, 2012 M.S. directed appellant to perform
the assigned task. He noted, “I have directed you for the past week for you to resume some of
your previous duties and you have not complied. I will seek assistance from the agency on the
next steps.”
Appellant provided her December 31, 2012 performance rating, which was “fully
successful.” In the appraisal, M.S. noted that since appellant’s return to work in October 2012,
her performance had degraded and he was spending additional time providing guidance. He
noted that appellant was using her subject matter expertise to impede office operations, that
appellant questioned everything, and she did not speak to or acknowledge others. He further
noted that appellant was not reviewing invoices in a timely, efficient, or effective manner.
By letter dated January 30, 2013, the employing establishment controverted appellant’s
claim based on fact of injury and performance of duty, and submitted additional evidence. On
January 21, 2013 M.S. responded to appellant’s allegations and noted that, regarding the March
meeting, appellant did not stay in her seat and was moving around. He asserted that, while
appellant raised her voice, S.D. tried to speak over her, but was not yelling, and neither he nor
D.H. raised their voices. M.S. asserted that appellant could not articulate her argument of why
the invoices should not be paid. He disagreed with appellant’s assertion that her telework for
four days a week was due to her medical condition. M.S. noted that appellant had teleworked
two days a week since November 2009. He noted that he attempted to help appellant to move
her workstation due to her allegation that she felt unsafe near S.D. and D.H. M.S. denied
verbally threatening appellant, but noted that his supervisor informed him that he had
overstepped his authority by granting appellant four days per week of telework.
S.D. denied appellant’s allegations that he made earthy remarks, that he yelled at her, or
that he touched her during the March 2012 meeting. He noted that appellant rarely spoke to him
or other employees and did not engage in social exchanges. S.D. agreed that he declined to
move when asked as he was comfortable where he was.
In a June 13, 2012 memorandum, employing establishment representative B.B., noted
that Deputy Program Executive Officer K.F. had appointed her to investigate appellant’s
assertion that she felt unsafe in close proximity to S.D. She noted that appellant was given the
5

opportunity to move to one of five different locations, but deemed none of them suitable. B.B.
opined that appellant and S.D. both raised their voices in the March 26, 2012 meeting, but that
there was no yelling. She further noted that appellant did not demonstratively feel threatened or
ask to discontinue the meeting. B.B. noted, “No one observed [appellant] saying to [S.D.] don’t
touch me or [make] dirty looks toward her.”
In a March 1, 2013 decision, OWCP denied appellant’s emotional condition claim,
finding that she had not substantiated a compensable employment factor. On March 20, 2013
appellant requested an oral hearing before an OWCP hearing representative which was scheduled
for July 10, 2013. Appellant missed the scheduled hearing but contacted OWCP’s hearing
representative who indicated that he would conduct a review of the written record.
Appellant continued to submit evidence. She provided the transcripts of April 26, 2012
and May 3, 2012 meetings with M.S regarding her reaction to S.D. M.S. proposed to move
appellant far from S.D. and she agreed to this. The transcript of a June 14, 2012 meeting
between appellant, M.S., and D.M., her new first line supervisor, included a discussion of her
telework agreement for four days a week, which M.S. noted he had inappropriately approved.
In the transcript of a July 26, 2012 meeting with M.S. regarding the interaction with S.D.,
appellant reported that S.D. carried on a conversation over her head. She stated that she left her
work area for 30 minutes, but every time she returned to her work area the conversation
continued. Appellant asked if the conversation was necessary and S.D. puffed up his chest and
looked angry. S.D. instructed appellant that, if something was bothering her, she should say
something about it, but not yell. Appellant denied yelling, but noted that her earphones were on,
so it was possible that her voice was louder than she realized. She noted using earphones to
block out the noise from the office. Appellant also noted that M.S. had discussed moving her
workspace, but that the offered alternatives were not better. K.F. proposed that appellant move
to S.D.’s current workspace and that another coworker move to her current space, which
appellant believed would result in two cubes between her and S.D. Appellant was agreeable to
this proposal.
Appellant provided a statement asserting that her efforts to perform her regular job duties
of reviewing, seeking correction, and approving invoices in 48 to 72 hours caused severe stress.
She was afraid that she would not complete the invoices in time and that, if she found a problem,
she would be asked to ignore it and break regulations. Appellant noted that her supervisor and
two coworkers pressured her to approve invoices that did not include proper backup
documentation. She also attributed her condition to the special assignment of reviewing three
task orders on a large contract, as she experienced stress compiling, verifying, checking, and
cross-referencing over 200 fund citations and contract line items and invoices.
Appellant alleged on January 9, 2013 that M.S. forced her to remain at work when her
physician opined that she was medically disabled to attend her appraisal meeting. She noted that
he provided negative written comments regarding her performance. Appellant alleged that M.S.
changed or falsified her time card by deleting 40 hours and entering 16 hours. She asserted that
he improperly used the last four digits of her social security number on her leave slip. Appellant
alleged that she was required to work outside her medical restrictions as she was required to
come into the employing establishment up to four days a week. She alleged that M.S. berated
her for asking questions in spite of her cognitive impairment.
6

On September 26, 2013 OWCP’s hearing representative set aside the March 1, 2013
decision, finding that appellant had provided additional factual evidence which the employing
establishment must address including the accuracy of the transcripts. He remanded the claim for
additional development by OWCP and a new decision on the merits.
In a letter dated January 28, 2014, OWCP requested that the employing establishment
review the transcripts provided by appellant. On February 28, 2014 the employing establishment
noted that appellant provided transcripts from meetings with her supervisors and asserted that
these supported that it had made efforts to accommodate appellant.
In a March 6, 2014 decision, OWCP denied appellant’s claim, finding that she had not
substantiated a compensable factor of employment. On March 26, 2014 appellant requested an
oral hearing from an OWCP hearing representative.3 She asserted that she had provided
recordings of the meeting in March 2012 which established that S.D. yelled.
Appellant testified during the October 16, 2014 oral hearing. She noted that her job
duties required her to approve invoices within 48 to 72 hours. Appellant noted that the invoices
from a particular contractor were improper and she was being pressured by her boss to approve
them. She testified that her boss threatened a personnel action when she refused to certify the
improper invoices. This situation reached a head on March 26, 2012. Following that meeting
the contracting officer for the contract opined that the invoice could not be approved without a
novation agreement. Appellant stopped work on April 4, 2012 and when she returned on
April 26, 2012 she was no longer approving invoices although she remained in the same
procurement analyst job. She received a special assignment instead. Appellant described the
alleged intimidation of March 26, 2012. Her social worker also testified.
Following the oral hearing, appellant submitted her time sheets from June, July, and
August 2013. She submitted a signed affidavit from H.D., her timekeeper, who noted that
appellant submitted a timesheet for 54 hours from July 1 through July 10, 2013. Appellant’s new
supervisor, D.M., directed H.D. to revise her timesheet in accordance with an agreement which
limited appellant to 16 hours of telework in a pay period. Appellant submitted an e-mail in
which she disagreed with the timesheet changes and refused to sign the amended timesheet on
July 10, 2013. She also provided e-mails dated August 7, 2013 in which D.M. directed appellant
to correct her timesheet, and H.D. to remove the time submitted.
On January 6, 2015 OWCP’s hearing representative affirmed the March 6, 2014 decision.
Appellant requested reconsideration on June 29, 2015. She provided a Notification of
Personnel Action dated February 6, 2015 which indicated that she was removed due to absence
without leave. Appellant provided selections of testimony in her case before the Merit Systems
Protection Board (MSPB). On May 19, 2015 B.B. testified about the interactions of S.D. with
another subordinate, M.S. She noted that S.D. received a letter of counseling and was placed on
probation. Appellant provided testimony from D.H. before MSPB on May 27, 2015. D.H.
testified that he had a confrontation with S.D. after he received an employee award. He
recounted that S.D. raised his voice and became defensive. The employing establishment
3
Appellant requested subpoenas for three witnesses on May 21, 2014. In an October 1, 2014 decision, Hearings
and Review denied the request for subpoenas.

7

arranged an intervention between S.D. and D.H. and afterwards they conversed on a weekly
basis. M.S. testified before the MSPB on May 22 and 29, 2015 and noted that S.D. received a
letter of counseling and was placed on probation. He noted that appellant approached him with a
concern about S.D. and recalled approximately five other such situations. M.S. also discussed
the events with Ms. M.S. which led to a formal counseling letter to S.D. Appellant provided the
testimony of K.F. before the MSPB on June 2, 2015. K.F. discussed the interactions of S.D. with
coworkers, but did not mention appellant.
In an October 29, 2015 decision, OWCP denied the claim finding that the evidence on
reconsideration did not describe any incident involving appellant. It concluded that appellant
had not submitted evidence substantiating the factors of employment as alleged.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.5 There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.6 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
by the employing establishment or by the nature of the work.7 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus,
disability is not covered when it results from an employee’s fear of a reduction-in-force. Nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.9 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

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

7

Cutler, supra note 4.

8

Id.

9

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

8

employment factor.10 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.12
ANALYSIS
Appellant has attributed her emotional condition to a variety of factors, including
difficulties in carrying out her regularly and specially assigned duties. She attributed her
emotional condition to the special assignment of reviewing three task orders on a large contract.
Appellant claimed that she experienced stress compiling, verifying, checking, and crossreferencing over 200 fund citations and contract line items and invoices. The Board finds that
appellant has not provided sufficient evidence to substantiate this special assignment. While
appellant has submitted a series of e-mails between herself, M.S., and D.M. in December 2012
and January 2013 addressing her assignments, the Board is unable to ascertain when or if
appellant reviewed a large contract and 200 fund citations. For this reason, the Board finds that
appellant has not established a factor under Cutler in regard to this allegation.13
Appellant also described her regularly assigned job duties as reviewing, seeking
correction, and approving invoices within 48 to 72 hours. The Board finds that appellant has not
provided her position description and has not established that her regular and specially assigned
duties provided a time limitation for approving invoices. Appellant noted that she was afraid that
she would not be able to complete the invoices in time and that, if she found a problem, her
supervisor would ask her to ignore it and break regulations. The Board has held that reactions to
a supervisor’s instructions in and of itself would not be compensable under Cutler.14 Appellant
did not sufficiently substantiate her prescribed duties under Cutler, and the work instructions
regarding the approval or disapproval of invoices must be evaluated under Thomas D. McEuen,15
In McEuen the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
10
Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
11

Roger Williams, 52 ECAB 468 (2001).

12

Alice M. Washington, 46 ECAB 382 (1994); E.C., Docket No. 15-1743 (issued September 8, 2016).

13

T.S., Docket No. 16-1470 (issued September 11, 2017).

14

Robert Knoke, 51 ECAB 319 (2000).

15

Supra note 10.

9

bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated, and not employment generated. In determining whether the
employing establishment erred or acted abusively, the Board has examined whether the
employing establishment acted reasonably.16
With regard to appellant’s allegation that she feared erroneous or abusive instructions
regarding the disposition of invoices, she has submitted no evidence that her supervisor acted
unreasonably in directing her to dispose of invoices. M.S. provided varying instructions via email regarding the disposition of invoices. On March 28, 2012 he agreed with appellant
regarding invoices with improper shipment numbers, but also instructed her to approve of an
invoice without a novation agreement. While there is a contradictory e-mail from K.B regarding
the missing novation agreement invoice, appellant has not provided the specific legal provisions
or otherwise substantiated that M.S.’s directive to approve this invoice rose to the level of error
or abuse such that he acted unreasonably in issuing his directive.17
Other allegations of administrative actions which she asserted constituted error and abuse
included the assignment of work by M.S. and D.M, the number of days she could telework, the
fact that M.S. did not offer her a new workspace that she found suitable, the retraction of her
blackberry, changes to her timesheets, and the comments on her performance appraisal. The
Board has held that disputes regarding leave,18 assignment of work,19 assessment of work
performance,20 and determinations regarding telework21 are all administrative functions of the
employing establishment and, absent error or abuse, a claimant’s disagreement or dislike of such
a managerial action is not compensable. The Board finds that while appellant disagreed with the
actions of her supervisors, she has not established error or abuse on the part of the employing
establishment in regard to these activities. Appellant has not submitted evidence substantiating
that the employing establishment erred in the matters.
Appellant further asserted that M.S. threatened her with a personnel action on March 28,
2012 and that he berated her for failing to complete work commensurate with her grade level.
Assigning work and monitoring performance are administrative functions of a supervisor.22 The
manner in which a supervisor exercises his/her discretion falls outside FECA’s coverage. This
16

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

17
See A.K., Docket No. 07-2270 (issued April 16, 2008); Kim Ngyen, 53 ECAB 127 (2001) (one example of
conflicting instructions did not establish error or abuse by a supervisor).
18

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995); T.V., Docket No. 16-1519 (issued September 12, 2017).

19

Robert W. Johns, 51 ECAB 137 (1999); T.V., id.

20

Elizabeth W. Esnil, 46 ECAB 606 (1995); T.V., supra note 18.

21

T.V., supra note 18.

22
N.D., Docket No. 16-0823 (issued August 18, 2017); Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005);
Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D. Edwards, 55 ECAB 258, 270 (2004).

10

principle recognizes that supervisors must be allowed to perform their duties, and at times
employees will disagree with their supervisor’s actions. Mere dislike or disagreement with
certain supervisory actions will not be compensable absent error or abuse on the part of the
supervisor.23 Appellant has not provided evidence to corroborate that M.S. acted unreasonably
in these matters and the Board finds that appellant has not established error or abuse by M.S. in
this regard.
Appellant also attributed her emotional condition to interactions with S.D. on March 26,
and June 26, 2012. She provided transcripts describing the March 26, 2012 meeting which
indicated that S.D. and appellant spoke over each other and that S.D. derided appellant’s opinion
with crude language as well as noting it was “smoke and mirrors.” The transcript also indicated
that appellant asked the S.D. not to touch her. However, the employing establishment provided
memoranda from B.B. and M.S. which found no inappropriate actions by S.D. Witnesses
present at the March 26, 2012 meeting denied that S.D. touched appellant and disagreed that he
yelled. Verbal altercations and difficult relationships with supervisors and coworkers, when
sufficiently detailed by the claimant and supported by the record, may constitute factors of
employment. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under FECA.24 Additionally, physical contact by a coworker or supervisor
may give rise to a compensable work factor, if the incident is established factually to have
occurred as alleged.25 The Board finds that appellant has not substantiated verbal nor physical
abuse by S.D. on March 26, 2012. The Board further finds that appellant has not established
inappropriate actions by S.D. on June 26, 2012. While she asserted that S.D. was angry with her,
appellant did not provide any witness statements or other corroborating evidence that his
behavior was threatening or hostile. She admitted that S.D. did not yell and merely requested
that she speak up when inactions were troubling her.
Appellant also asserted that the above described actions were harassment, discrimination,
and intimidation by M.S., D.M., and S.D. The employing establishment denied these allegations.
The Board finds that appellant has not established anything more than the mere perceptions of
harassment or discrimination which are not compensable. Appellant failed to establish a basis in
fact for her claims of harassment and discrimination by supporting her allegations with probative
and reliable evidence.26
The Board finds that appellant has not substantiated a compensable factor of
employment. Where a claimant has not established any compensable employment factors, the
Board need not consider the medical evidence of record.27

23

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004); N.D., id.

24

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

25

Denise Y. McCollum, 53 ECAB 647 (2002); Helen Casillas, 46 ECAB 1044 (1995).

26

L.D., Docket No. 17-0693 (issued August 18, 2017); see supra note 12.

27

A.K., 58 ECAB 119 (2006).

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 failed to meet her burden of proof to establish an
emotional condition arising from her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 29, 2015 is affirmed.28
Issued: July 24, 2018
Washington, DC

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

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

28
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

12


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

)
)
)
)
)
)
)
)

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

Docket No. 12-137
Issued: June 19, 2012

Case Submitted on the Record

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

JURISDICTION
On October 19, 2011 appellant filed a timely appeal from an April 22, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his emotional condition claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a consequential emotional
condition causally related to his accepted employment injury of August 30, 2008.
On appeal, appellant contends that the medical evidence established that his emotional
condition was causally related to his accepted employment injury. He noted that on
November 19, 2009 the Office of Personnel Management (OPM) approved his retirement based
on an emotional condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 30, 2008 appellant, then a 39-year-old clerk, alleged that injury to his right
neck, right shoulder and right upper back with tingling and numbness in his right hand on that
date. On January 21, 2009 OWCP accepted his claim for neck sprain, right trapezius sprain and
right brachial neuritis.
By letter to OWCP dated March 23, 2009, appellant asked that his claim be accepted for
depression secondary to his neck and right trapezius sprains.2
The record contains medical reports from Dr. Henry C. Eddleman, a Board-certified
psychiatrist, dated March 27 to September 26, 2000. He attributed appellant’s psychiatric
treatment to stress at his workplace. In 2000, Dr. Christopher L. San Miguel Ph.D., a clinical
psychologist, discussed appellant’s need to plan for future employment possibilities due to his
depression secondary to anger management and his inability to cope in a highly stressful work
environment. He also noted prior problems with anger management.
In a September 23, 2008 letter, Dr. Ralph D’Auria, a Board-certified physiatrist, stated
that appellant was currently under medical treatment for a trauma he sustained during an on-thejob injury. At the present time, appellant’s sleep patterns had been altered due to working the
night shift necessitating medication from his psychiatrist. Dr. D’Auria opined that the disruption
of appellant’s sleeping patterns aggravated his musculoskeletal condition and requested that he
be allowed the 7:30 a.m. to 4:00 p.m. shift to avoid exacerbations of his ongoing orthopedic
problems.
Appellant was seen by Dr. Alisa S. Williams, a Board-certified psychiatrist, on
September 12, 2008. Dr. Williams diagnosed him with depressive disorder and alcohol abuse, as
well as anger issues. She noted that appellant believed that the employing establishment had not
been accommodating of his physical problems and he objected to working the night shift because
it made his sleep worse.
In a January 22, 2009 note, Dr. Alberto Gonzalez, a Board-certified psychiatrist, stated
that appellant was a patient and was being treated for depression and anger management.
Appellant was on antidepressant medications and was in therapy. Dr. Gonzalez recommended
that appellant work the day shift to provide consistency with medication adherence in managing
his depression. In a March 4, 2009 report, he noted that appellant was having difficulty
remembering to take his medication. Dr. Gonzalez noted that appellant made no threats or
comments regarding his job situation during group or individual sessions with his case manager.
In a decision dated June 17, 2009, OWCP denied appellant’s claim for a consequential
psychological condition as the medical evidence did not establish that it arose from the accepted
injury of August 30, 2008.

2

Appellant also requested that, a prior claim, OWCP File No. xxxxxx429, be amended to include a consequential
claim for depression.

2

In a November 12, 2009 repot, Dr. Gregory W. Melieste, a Board-certified psychiatrist,
stated that appellant had been off work due to a combination of mental and physical disabilities.
From a psychiatric perspective, appellant noted that he sustained problems with mood and
agitation related in large part to job stress, including shift-hour changes and interactions with his
supervisors. Appellant told Dr. Melieste that he was easily agitated when stressed and did not
feel that his current treatment or medication would prevent violence if he were provoked.
Dr. Melieste opined that appellant remained disabled from work due to concerns regarding
potential violence to himself or others.
On November 19, 2009 OPM advised appellant that his disability retirement was
approved. It noted that he was found disabled from his position as a clerk due to depression, left
wrist fusion, post left scaphoid nonunion, bilateral shoulder tendinitis, right trapezius sprain and
cervical radiculopathy with herniated disc.
On June 1, 2010 appellant requested reconsideration of the decision denying his claim for
a consequential emotional condition. He contended that his accepted employment injury caused
him to be stressed and depressed. Appellant noted that Dr. Melieste was his current mental
health physician.
By decision dated August 16, 2010, OWCP denied modification of the June 17, 2009
decision. It found that the medical evidence did not establish that appellant had a psychological
condition causally related to his work injury of August 30, 2008.
On January 24, 2011 appellant requested reconsideration. In a December 22, 2010
report, Dr. Melieste stated that appellant had several psychiatric visits with a diagnosis of major
depression, recurrent, with psychotic features. He noted that it was appellant’s contention that
his work-related injuries, with persistent disability and chronic pain, were the proximal cause of
his depression. Dr. Melieste stated: “In summary, while I am unable to authoritatively comment
on his original injuries, [appellant] seems to have experienced significant symptoms of
depression, paranoia and anger management issues as a direct consequence of his injuries and the
management of his situation by his employer.”
By decision dated April 22, 2011, OWCP denied modification of the August 16, 2010
decision.
LEGAL PRECEDENT
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.3 The basic rule is that a subsequent injury, whether an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.4
3

F.H., Docket No. 10-1267 (issued March 7, 2011); see Carlos A. Marrero, 58 ECAB 166 (2006).

4

A. Larson, The Law of Workers’ Compensation § 10.01 (2005); Charles W. Downey, 54 ECAB 421 (2003).

3

ANALYSIS
Appellant alleged that he sustained an emotional condition as a consequence of his
August 30, 2008 employment injury. The Board finds that he did not submit sufficient medical
evidence to establish a consequential emotional condition and his accepted neck sprain, right
trapezius sprain or brachial neuritis.
None of the medical reports of record provide a well-rationalized opinion by a physician
explaining how the claimed emotional condition was caused or aggravated by the accepted
injury. The medical reports of Drs. Eddleman and San Miguel from 2000, indicate that appellant
had issues with depression and anger management since that time and are not directly relevant to
the issue of disability commencing in 2008 or 2009. After the August 30, 2008 employment
injury, Dr. Williams diagnosed depressive disorder, alcohol abuse and issues with anger. He
noted that appellant contended that the employing establishment was not accommodating his
physical conditions and that working the night shift made it worse. Dr. Williams did not provide
an opinion addressing causal relationship; he merely repeated appellant’s allegations.
Dr. Gonzalez noted that appellant was being treated for depression and anger management and
had difficulty remembering to take his medication. He made no correlation between appellant’s
emotional condition and the accepted employment injuries. Dr. Gonzalez noted that appellant
made no comments regarding his job situation during group or individual sessions with his case
manager. Medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of diminished probative value on the issue of causal relationship.5
Dr. D’Auria did not provide a narrative opinion that addressed appellant’s emotion
condition; he simply noted that appellant’s sleep patterns were altered by working the night shift
and that changing to the day shift would be useful to avoid exacerbation of his ongoing
orthopedic problems.
Dr. Melieste stated that appellant was disabled from work due to a combination of mental
and physical disabilities. He noted that, from a psychiatric perspective, appellant had problems
with mood and agitation and a concern with regard to the potential for violence to himself and
others. Dr. Melieste noted appellant’s contention that his work injuries, with persistent disability
and chronic pain, were the proximal cause of his depression. He noted that he was unable to
authoritatively comment on appellant’s accepted injuries and speculated that he experienced
significant symptoms of depression, paranoia and anger management as a consequence of the
situation with his employer. Dr. Melieste did not relate appellant’s emotional condition
specifically to the August 30, 2008 employment injury. His opinion relies in large part on
appellant’s statements without adequate rationale as to how his accepted conditions of neck
sprain, right trapezius sprain and brachial neuritis contributed to his emotional conditions.
Without medical rationale, Dr. Melieste’s opinion is of diminished probative value.6 Medical
opinions that are speculative or equivocal are of diminished probative value.7
5

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

6

T.M., Docket No. 08-974 (issued February 6, 2009); Mary A. Ceglia, 55 ECAB 626 (2004).

7

R.B., Docket No. 11-1910 (issued March 27, 2012).

4

Appellant noted that OPM approved a disability retirement in its November 19, 2009
letter. OPM found that, due to numerous medical issues, including his emotional condition, he
was disabled from employment. It did not reach any conclusion with regard to the cause of
appellant’s disabling conditions, including his emotional condition. It is well established that a
finding of disability under a federal statute other than FECA is not determinative on that question
under FECA.8
Where a claimant claims that a condition not accepted by OWCP was due to his
employment injury, he bears the burden of proof to establish that such condition is causally
related to the employment injury through the submission of rationalized medical evidence.9 The
medical evidence of record is insufficient to discharge appellant’s burden.
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 he sustained an emotional
condition as a consequence of the August 30, 2008 employment injuries.

8

See John E. Cannon, 55 ECAB 585 (2004).

9

JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 22, 2011 is affirmed.
Issued: June 19, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 17-1635
Issued: December 5, 2017

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 July 24, 2017 appellant filed a timely appeal from a February 8, 2017 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a head injury in
the performance of duty on November 17, 2016, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s February 8, 2017 decision, appellant submitted new
evidence. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time it issued
its final decision. Thus, the Board may not consider the new evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On November 17, 2016 appellant, then a 67-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that, at 10:40 p.m. that night, she sustained a contusion and
bruise to the head due to a defective latch on the top gate of an all-purpose container (APC) on a
workroom floor. On the reverse side of the claim form, the employing establishment checked a
box marked “yes” in response to the question whether she was injured in the performance of
duty. Appellant stopped work on November 18, 2016.
OWCP received a November 18, 2016 brain computerized tomography (CT) scan report
signed by Dr. Tara Otto, a Board-certified radiologist. Dr. Otto noted a clinical history that
appellant sustained an injury or trauma when a metal shelf fell on her head, initial encounter,
blunt trauma (contusions or hematomas). She provided an impression of no acute intracranial
finding visualized.
OWCP also received a November 18, 2016 excuse from work note with an illegible
signature from Aria Health. The note excused appellant from work and recommended that she
avoid physical activity through November 21, 2016.
In a prescription dated December 2, 2016 that, was mostly illegible, Dr. John M.
Anderson, an attending Board-certified family practitioner, provided a diagnosis of headache.
In a facsimile transmittal dated December 15, 2016, Ruth Shafer, an OWCP registered
nurse, requested that Dr. Anderson submit information regarding appellant’s diagnosis, treatment
plan, and work capacity. She noted that the date of injury was November 17, 2016. In a
December 20, 2016 continuation of pay (COP) nurse report, Nurse Shafer indicated that
appellant remained off work with a head injury. She related that appellant had informed her that
she could possibly return to work on January 2, 2017. Nurse Shafer reported that, on the date of
injury, appellant placed mail on the top shelf of a container and closed the door. She further
reported that, when appellant went to place mail on the bottom shelf of the container, the top
shelf fell on her head. Appellant fell down, but did not lose consciousness. She was taken to an
emergency room by a coworker and underwent a CT scan that was negative.
By letter dated January 3, 2017, OWCP advised appellant that when her claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work. It
noted that the employing establishment did not controvert COP or challenge the merits of the
case and payment of a limited amount of medical expenses was administratively approved.
However, the merits of the claim had not been formally considered and appellant’s claim was
being reopened because she had not returned to full-time work. OWCP explained the additional
factual and medical evidence needed and afforded appellant 30 days to submit such evidence. It
also requested that she respond to a factual development questionnaire.
OWCP subsequently received a December 9, 2016 prescription note from Dr. Anderson.
Dr. Anderson indicated that appellant had a closed-head trauma injury and that she could return
to full-duty work without restrictions on an illegible date in 2017.

2

In a February 8, 2017 decision, OWCP denied appellant’s traumatic injury claim. It
found that she had failed to respond to its January 3, 2017 development questionnaire and failed
to describe the November 17, 2016 incident in sufficient detail to establish that the employment
incident occurred as alleged. OWCP further found that the medical evidence submitted did not
contain a medical diagnosis in connection with the claimed injury or event(s).
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within applicable time
limitation, that an injury was sustained while 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.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden of proof to establish the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.8

3

Supra note 1.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

6

T.H., 59 ECAB 388 (2008).

7

R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

8

Betty J. Smith, 54 ECAB 174 (2002).

3

ANALYSIS
The Board finds that appellant has failed to establish an injury in the performance of duty
on November 17, 2016, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident occurred
as alleged.9 On her Form CA-1, she alleged that she sustained a head injury on November 17,
2016 due to a defective latch on the top gate of an APC. Appellant did describe precisely where
the alleged injury occurred, providing the exact location of the work floor at the employing
establishment. However, the Board notes that her description of the traumatic incident is vague
and fails to provide any specific detail to determine the manner in which she sustained her
alleged injury. Appellant’s description did not relate with specificity the circumstances of the
injury.10 She did not explain how the defective latch on the top gate of an APC caused her
claimed injury. The Board notes that Dr. Otto’s November 18, 2016 brain CT scan report and
Nurse Shafer’s December 20, 2016 COP nurse report relate that on November 17, 2016 the top
shelf of a container on which appellant had placed mail fell on her head. While this statement
provided additional details of how the injury allegedly occurred, it remains unclear as to whether
these reports were based on an accurate history of injury. The Board is unable to consider the
accuracy of Dr. Otto’s and Nurse Shafer’s recitation of the history of injury as appellant has not
provided details as to how the injury occurred.11
Appellant was provided an opportunity to establish how her alleged injury occurred on
November 17, 2016 while in the performance of duty. By letter dated January 3, 2017, OWCP
requested that she describe the factual circumstances of her injury and provided her with a
factual development questionnaire for completion. Appellant did not respond to the
questionnaire and failed to provide a narrative statement detailing the traumatic incident prior to
the issuance of OWCP’s denial of her claim on February 8, 2017. The only explanation she
provided pertaining to the alleged November 17, 2016 traumatic incident was the generalized
and vague statement noted on her Form CA-1. By failing to describe the employment incident
and circumstances surrounding her alleged injury, appellant has not established that the traumatic
injury occurred at work, as alleged.12 Thus, the Board finds that she has not meet her burden of
proof.13 A s such, it is unnecessary to address the medical evidence regarding causal
relationship.14
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.
9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

See T.N., Docket No. 16-1099 (issued December 16, 2016).

11

Id.

12

Id.

13

Id.

14

See Bonnie A. Contreras, 57 ECAB 364 (2006); Alvin V. Gadd, 57 ECAB 172 (2005).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a head injury
in the performance of duty on November 17, 2016, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fremont, NE, Employer
__________________________________________

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

Docket No. 14-758
Issued: June 26, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 20, 2014 appellant filed a timely application for review from a September 5,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration. Because more than 180 days elapsed from December 4, 2012, the
date of the most recent merit decision, 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 appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen her claim for
further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 12, 2012 appellant, then a 35-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that, on September 12, 2012, she injured her lower
back when she bent over to pick up a letter from the floor. She stopped work on September 12,
2012 and returned to work on September 17, 2012. The employing establishment challenged
appellant’s claim, noting that she had not provided any medical documentation.
By letter dated October 29, 2012, OWCP requested additional factual and medical
evidence from appellant. It noted that she had not submitted factual or medical evidence in
support of her claim and afforded her 30 days to submit additional evidence.
In an emergency department report dated September 12, 2012, Dr. Brian Cunningham,
Board-certified in emergency medicine, diagnosed appellant with back pain. He noted that she
presented with right lower back pain that began approximately 30 minutes before her visit, when
she was at work, after she bent down to pick up a letter from the floor. Appellant stated that she
had hurt her back one year before and that it had resolved with cortisone injections. She also
submitted discharge instructions from the same date. A person with an illegible signature
recommended that appellant return to work on September 17, 2012 on sedentary status.
Appellant submitted treatment notes from September 14 through October 2, 2012, which
did not contain a legible signature.
In an attending physician’s report dated November 23, 2012, Dr. Thomas McKnight,
Board-certified in family medicine, diagnosed appellant with degenerative disc disease and
related her condition to an incident that occurred two years before.
By decision dated December 4, 2012, OWCP denied appellant’s claim. It found that she
had not submitted a well-reasoned medical opinion establishing that her diagnosed condition was
the result of a traumatic event. OWCP noted that it had received several assessments of back
pain, which was not an acceptable diagnosis under FECA. It accepted that appellant had
established that she was a federal civilian employee who filed a timely claim that the incident
occurred, that a medical condition had been diagnosed; and that she was within the performance
of duty.
On August 8, 2013 appellant requested reconsideration of OWCP’s December 4, 2012
decision. She did not submit any new evidence or argument to OWCP in support of her request
for reconsideration.
By decision dated September 5, 2013, OWCP denied appellant’s request for
reconsideration. It noted that she had neither raised substantive legal questions regarding the
December 4, 2012 decision nor included new and relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), its regulations
provide that the evidence or argument submitted by a claimant must: (1) show that OWCP
erroneously applied or interpreted a specific point of law; (2) advance a relevant legal argument
2

not previously considered by OWCP; or (3) constitute relevant and pertinent new evidence not
previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations provide that, when
an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.3
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.4 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.5
While the reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.6
ANALYSIS
OWCP issued a December 4, 2012 decision denying appellant’s claim for compensation.
On August 8, 2013 appellant requested reconsideration of this decision. OWCP declined her
request for reconsideration on September 5, 2013.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her
claim. In her August 8, 2013 request for reconsideration, appellant did not establish that OWCP
erroneously applied or interpreted a specific point of law. She did not identify a specific point of
law or show that it was erroneously interpreted or applied. Thus, appellant is not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(3).
The relevant issue upon reconsideration was whether appellant had established, by
rationalized medical evidence, a causal relationship between her diagnosed condition and the
traumatic incident of September 12, 2012. A claimant may be entitled to a merit review by
submitting new and relevant evidence. However, appellant failed to submit any new and
relevant evidence in this case. She submitted no new medical evidence with her request for
reconsideration.
On appeal, appellant argues that she had submitted sufficient factual and medical
documentation for OWCP to accept her claim. As noted above, the Board does not have
jurisdiction over the merits of the December 4, 2012 decision.
2

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

4

See Daniel Deparini, 44 ECAB 657, 659 (1993).

5

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).
6

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

3

The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

4