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

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Appearances:
Paul H. Kullen, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1580
Issued: April 4, 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 July 29, 2016 appellant filed a timely appeal from a February 2, 2016 merit decision
and a July 22, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish an injury
causally related to an accepted September 12, 2013 employment incident; and (2) whether
OWCP properly denied further merit review of appellant’s case pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 29, 2008 appellant, then a 47-year-old mail processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that on December 29, 2008 she sustained a back
injury as a result of lifting a tub from an all-purpose container (APC) at work. She stopped work
and returned to light duty on January 19, 2009. OWCP assigned File No. xxxxxx801. OWCP
accepted appellant’s claim for lumbosacral strain. Appellant continued to receive medical
treatment for her accepted back injury.
On February 24, 2014 appellant filed a recurrence claim (Form CA-2a) alleging that on
September 12, 2013 she experienced a worsening of her December 29, 2008 employment injury.
She explained that she stopped work on January 29, 2014 because her treating physician
restricted her to no lifting over 20 pounds and her employing establishment was unable to
accommodate the new work restrictions.
By letters dated March 31 and April 14, 2014, OWCP advised appellant that based on her
description of the September 12, 2013 incident, it was determined that she was claiming a new
traumatic injury3 due to new work factors, not a recurrence of the December 29, 2008
employment injury. It informed her that because the employing establishment did not complete
and sign the second page of the Form CA-2a, OWCP could not administratively create a new
traumatic injury claim. OWCP requested that appellant obtain a blank Form CA-1 and file a new
traumatic injury claim.
On May 7, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging that on
September 12, 2013 she sustained a back injury as a result of pushing equipment at work. She
stopped work on January 29, 2014. OWCP assigned File No. xxxxxx163.
Appellant was treated at employee health by Dr. Dorian D. Moore, a Board-certified
internist. In examination notes dated September 17, 2013 to April 1, 2014, Dr. Moore related
that appellant had a history of chronic back pain with acute exacerbations. She explained that
once or twice a year appellant developed severe exacerbations of her back injury, which were
only helped with physical therapy. Dr. Moore noted that appellant currently had an exacerbation
of back pain since September and was awaiting approval for physical therapy. Upon
examination of appellant’s back, she observed tenderness in the lumbar paraspinous muscles
with palpable spasms. Dr. Moore related appellant’s complaints of pain with straight leg raising

3

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).

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past 45 degrees. Lower extremity strength was normal. Dr. Moore diagnosed chronic back pain
with acute exacerbation.
Dr. Moore also provided narrative reports dated January 20 and February 20, 2014. She
indicated that appellant was currently her patient for chronic back pain due to a lumbosacral
sprain sustained in 2008. Dr. Moore explained that since the sprain, appellant experienced
ongoing issues with frequent acute exacerbations. She reported that current examination
findings revealed extreme tenderness of the paraspinous muscles in appellant’s lumbar region,
limited range of motion with flexion of the back, and difficulty ambulating. Dr. Moore noted
that appellant was capable of working with restrictions of no lifting and provided a duty status
report.
On May 12, 2014 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period March 22 to May 16, 2014. She continued to file claims for wage-loss compensation
for continued disability.
By letter dated May 12, 2014, OWCP advised appellant that the evidence submitted was
insufficient to establish her traumatic injury claim. It requested that she respond to an attached
questionnaire in order to substantiate the factual elements of her claim and provide medical
evidence to establish a diagnosed condition as a result of her employment. Appellant was
afforded 30 days to submit the requested information.
In a May 14, 2014 treatment note, Dr. Moore related that appellant continued to have
severe low back pain while awaiting physical therapy. Upon examination of appellant’s back,
she observed diffuse tenderness in the lumbar paraspinous muscles and limited range of motion
with flexion. Straight leg raise testing was positive at 30 degrees bilaterally. Dr. Moore
completed a duty status report with appellant’s current work restrictions.
OWCP denied appellant’s claim in a decision dated June 17, 2014. It found that the
factual evidence was insufficient to establish that the alleged September 12, 2013 employment
incident occurred as alleged. OWCP noted that appellant failed to respond to its May 12, 2014
development letter and therefore did not provide detailed information explaining the factual
surroundings of how she injured her back at work on September 12, 2013. It also determined
that the medical evidence of record failed to establish a diagnosed medical condition as a result
of the alleged incident.
On August 22, 2014 OWCP received appellant’s request for reconsideration. In a
statement, appellant explained that she was requesting reconsideration of her workers’
compensation claim and seeking payment for physical therapy treatment for exacerbation of
spinal stenosis. She related that her traumatic back injury was caused on September 12, 2013 by
pushing a heavy APC. Appellant noted that she was submitting additional evidence and
information to show that the strenuous work activity caused her injury.
Along with her reconsideration request, appellant provided a July 17, 2014 narrative
report by Dr. Moore. Dr. Moore indicated that she had treated appellant for symmetrical caudal
sac stenosis at the L4-L5 level which began with a work-related injury prior to 2009. She
explained that appellant experienced a severe exacerbation of her spinal stenosis due to another

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work-related injury on September 12, 2013 when she pushed a heavy cart. Dr. Moore opined
that it was clear that both the initial injury and the acute exacerbation occurred in the
performance of work-related duties. Upon examination, she observed tenderness of the lumbar
paraspinous musculature and limited range of motion. Dr. Moore noted that lower extremity
strength was decreased due to pain. She reported a diagnosis of symmetrical caudal sac stenosis
at L4-L5 level with acute exacerbation. Dr. Moore again requested that appellant be approved
for a course of physical therapy.
Appellant also submitted a detailed statement dated July 26, 2014 regarding the
September 12, 2013 employment incident. She related that she was working in the cage to set up
the APC equipment to take out on the floor. Appellant noted that a loaded APC was extremely
heavy and that three people were usually assigned to one APC. She indicated that on
September 12, 2013, her supervisor asked her to take a second APC around after she had pushed
one of the APCs around to distribute mail because the employing establishment was
understaffed. Appellant reported that she asked for assistance because this APC was much
heavier and exceeded her work restrictions. She stated that she began to experience a
considerable amount of pain in her lower back while taking the second APC around. Appellant
asked her supervisor for assistance, but he could not find anyone to help her. She discussed the
pain and spasms she began to experience, various supervisors who tried to assist her, and the
steps she took to try to alleviate the pain. Appellant reported that eventually she asked to leave
work because she was in too much pain.
After the September 12, 2013 incident, appellant explained that she experienced
problems regarding filing the proper paperwork for approval for physical therapy. She pointed
out that as she waited, she lost more days at work due to the severity of the pain from the injury.
Appellant related that on January 20, 2014 Dr. Moore put her on a no lifting restriction, but when
she returned to work she was told that she could not work and was sent home. She submitted a
letter from OWCP dated April 8, 2014, which informed her that her claim for recurrence (Form
CA-2a) of disability beginning September 12, 2013 was being administratively changed to a
claim for a new traumatic injury.
Appellant was also treated by Dr. Gary J. Peppin, a Board-certified internist. In an
August 6, 2014 examination note, Dr. Peppin indicated that appellant had a history of back
issues, was treating with Dr. Moore, and was currently complaining of increased back pain and
right lateral thigh pain that worsened in the past few days. Upon examination of appellant’s
back, he observed tenderness over the right greater trochanter and in the low back. No acute
distress or palpable abnormalities were noted. Dr. Peppin diagnosed right lateral thigh pain and
elevated blood pressure.
In examination notes dated September 3 and November 7, 2014, Dr. Moore related that
appellant was being treated for acute exacerbation of her chronic back pain and that she currently
complained of right hip pain. Appellant remained off work and was still awaiting approval for
physical therapy. Dr. Moore noted that appellant would likely be able to return to sedentary
duties once physical therapy was initiated. Upon examination, she observed tenderness in the
lumbar paraspinous muscles bilaterally and tenderness on the lateral aspect of the right hip.
Range of motion was decreased with forward flexion. Dr. Moore diagnosed back pain.

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By decision dated November 18, 2014, OWCP found that the factual evidence was
sufficient to establish that the September 12, 2013 employment incident occurred, but denied
appellant’s claim finding that the medical evidence of record failed to establish that her
preexisting back condition, spinal stenosis at L4-L5, was worsened or exacerbated by the
accepted employment incident.
On October 30, 2015 OWCP received a letter from counsel dated October 26, 2015,
which requested that OWCP review Dr. Moore’s additional report. He alleged that the wellreasoned report of Dr. Moore addressed OWCP’s concerns and met its standards.4
The narrative report from Dr. Moore was dated July 1, 2015. Dr. Moore related that
appellant had initially sustained a work-related back injury in 2008 and had received treatment.
She noted that appellant had experienced several acute exacerbations of her back pain.
Dr. Moore explained that on September 12, 2013 appellant pushed two large carts full of mail at
work, despite her restrictions, and began to experience low back pain. She indicated that the
pain continued and increased so appellant sought treatment on September 17, 2013. Dr. Moore
related that appellant had not returned to work since January 20, 2014 and opined that physical
therapy could likely facilitate her return to work. She reported that current examination showed
persistent spasm and tenderness in appellant’s lower lumbar region, which had remained
virtually unchanged since her initial examination. Dr. Moore opined that “the pushing of the
heavy APC cart in 2013 caused muscle strain and injury which caused an increase in her pain.”
She requested that appellant be afforded full consideration so that she could reach maximum
medical improvement and return to work in the near future.
Dr. Moore provided an October 25, 2015 duty status report which indicated that appellant
could work with restrictions of no climbing, kneeling, bending, stooping, twisting, pulling,
pushing, reaching above the shoulder, and lifting.
On January 19, 2016 OWCP received a letter dated January 13, 2016 from counsel.
Counsel asserted that he was repeating his request for reconsideration and pointed out that the
additional medical report of Dr. Moore was new evidence that supported appellant’s claim on the
issue of causation in a favorable manner. Dr. Moore related that upon review of appellant’s
records, she realized that she had a previously accepted claim for which she was under work
restrictions when the September 12, 2013 work incident occurred. Counsel alleged that
appellant’s compliance with her supervisor’s request to push a heavy APC cart, which exceeded
her restrictions, led to the reported injury of the second claim.
In a decision dated February 2, 2016, OWCP denied modification of the November 18,
2014 decision because the medical evidence failed to establish that she sustained a back injury
causally related to the accepted September 12, 2013 employment incident. It specifically noted
that Dr. Moore did not sufficiently explain how the accepted incident contributed to or
exacerbated appellant’s preexisting back condition.
On February 23, 2016 appellant retired from federal service due to disability.

4

OWCP considered this letter as a request for reconsideration.

5

In a letter dated April 15, 2016, received by OWCP on April 22, 2016, appellant, through
counsel, requested reconsideration. Counsel reiterated that appellant was working with
restrictions associated with a previously accepted claim File No. xxxxxx801 when she
experienced another injury to her back on September 12, 2013. He noted that OWCP had
informed appellant to file a claim for a new injury instead of referring to her previously accepted
claim. Counsel asserted that OWCP had a duty to pay wage-loss compensation benefits when an
employing establishment elected to pay wage-loss benefits instead of paying wages after an
injured employee is removed from limited duty. He further alleged that OWCP had placed
appellant in a situation of bureaucratic contradiction. Counsel pointed out that under File No.
xxxxxx632, OWCP denied appellant’s claim because the medical evidence did not show a
change of the prior condition sufficient to establish a new injury. He noted that OWCP
determined that her condition was the same as the one in her previously accepted claim under
File No. xxxxxx801 for a 2008 injury, but under that claim, OWCP refused to pay wage-loss
compensation benefits because appellant was off work due to the claim under File No.
xxxxxx632 for a 2013 injury. Counsel asserted that OWCP improperly decided not to award
wage-loss benefits for the 2008 injury and based its decision on the denial of the 2013 claim
even though it decided that appellant’s 2013 claim was a new injury, and not a continuation of
her 2008 accepted injury. He asserted that the ruling in the 2013 claim for no new injury should
not be a basis for not paying the accepted claim for wage-loss compensation benefits in the 2008
employment injury.
Effective April 29, 2016, OWCP combined appellant’s previously accepted 2008
traumatic injury claim under File No. xxxxxx801 with the current File No. xxxxxx632, with the
master file as File No. xxxxxx801.
By decision dated July 22, 2016, OWCP denied further merit review of appellant’s claim.
It found that appellant’s reconsideration letter neither raised a substantive legal question nor
submitted relevant and pertinent new evidence sufficient to warrant merit review according to 5
U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 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.7
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.8
5

5 U.S.C. §§ 8101-8193.

6

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

7

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

8

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

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There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.9 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.10 An employee may establish that the employment incident
occurred as alleged but fail to show that his or her disability or condition relates to the
employment incident.11
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.12 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.13 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.14
While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence and to see that justice is done.15
ANALYSIS -- ISSUE 1
Appellant alleged an exacerbation of her preexisting back condition on September 12,
2013 when she pushed a heavy cart at work. OWCP accepted that on September 12, 2013 she
pushed a large APC at work and that she was diagnosed with spinal stenosis at L4-L5. It denied
appellant’s claim finding that the medical evidence of record failed to establish how the accepted
September 12, 2013 employment incident aggravated or exacerbated her preexisting back
condition.
The Board finds that this case is not in posture for decision.
Appellant submitted various reports of Dr. Moore dated September 17, 2013 to
July 5, 2015. In a July 17, 2014 narrative report, Dr. Moore related that she had treated appellant
for spinal stenosis at L4-L5 of her lumbar spine following a 2008 work injury. She opined that
9

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

10

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

11

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

12

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

13

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

14

James Mack, 43 ECAB 321 (1991).

15

Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell,
34 ECAB 1233, 1237 (1983).

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appellant sustained a severe exacerbation of her spinal stenosis on September 12, 2013 when she
pushed a heavy cart at work, despite work restrictions. Dr. Moore explained that appellant’s
December 2008 employment injury and her September 12, 2013 employment incident caused an
exacerbation of her L4-L5 stenosis. In a July 1, 2015 report, she further explained that pushing
the heavy APC cart in 2013 caused muscle strain and injury. Dr. Moore reported that appellant’s
chronic back pain and exacerbation of her back pain were directly related to her work duties.
The Board concludes that although these reports do not provide sufficient medical rationale
explaining how the accepted employment incident caused or contributed to an exacerbation of
appellant’s preexisting back condition, they strongly suggest and support a relationship between
the accepted September 12, 2013 incident and appellant’s back condition.16
The Board finds that, while the reports from Dr. Moore are not completely rationalized,
they are consistent in indicating that appellant sustained an exacerbation of her preexisting back
condition.17 Although the reports are insufficient to meet appellant’s burden of proof to establish
her claim, they are sufficient to require OWCP to further develop the medical evidence.18
It is well-established that proceedings under FECA are not adversarial in nature and
OWCP is not a disinterested arbiter.19 While the claimant has the burden to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.20 Thus, the Board will remand the case to OWCP for further development to
obtain a rationalized medical opinion as to whether appellant’s condition is causally related to
the employment incident and issue a de novo decision on whether she sustained an injury in the
performance of duty on September 12, 2013, as alleged.21
CONCLUSION
The Board finds that this case is not in posture for decision.

16

See L.F., Docket No. 14-1906 (issued August 13, 2015) (the Board determined that while reports by a
claimant’s treating physician were not completely rationalized to establish a work-related injury they strongly
supported a relationship between the employment incident and diagnosed condition and remanded the case for
OWCP to further develop the medical evidence).
17

See E.J., Docket No. 09-1481 (issued February 19, 2010).

18

Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, supra note 10.

19

See Vanessa Young, 56 ECAB 575 (2004).

20

Supra note 15.

21

Because of the disposition of the first issue, the second nonmerit issue is moot.

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ORDER
IT IS HEREBY ORDERED THAT the February 2, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision of the Board.
Issued: April 4, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TROOP SUPPORT AGENCY, Fort Sill, OK,
Employer
__________________________________________

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

Docket No. 13-1557
Issued: October 29, 2013

Case Submitted on the Record

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

JURISDICTION
On June 18, 2013 appellant filed a timely appeal from a May 23, 2013 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days has elapsed from the date of the last merit decision on
February 16, 2011 to the filing of this appeal on June 18, 2013, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only
has jurisdiction over the nonmerits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On September 23, 1975 appellant, then a
37-year-old stock clerk, sustained an injury to his back while lifting a steel conveyor belt.
OWCP accepted his traumatic injury claim for right lumbar muscle strain under File No.
xxxxxx397. Appellant also sustained injuries to his head and left shoulder on April 26, 1978.
OWCP accepted his traumatic injury claim for hematoma of the scalp and contusion of the left
shoulder under File No. xxxxxx587.
By decision dated October 7, 2005, the Board dismissed appellant’s appeal at his
request.2 On November 30, 2006 the Board dismissed an appeal, finding that he did not intend to
appeal a decision in this case.3 In a December 11, 2006 decision, the Board affirmed OWCP’s
August 10, 2005 decision, finding that appellant failed to establish that he sustained a recurrence
of disability in March 1980 that was causally related to his accepted April 26, 1978 employment
injury.4 In a March 23, 2007 order, the Board dismissed appellant’s appeal, again finding that he
had not intended to file an appeal in this case.5 By decision dated February 20, 2009, the Board
affirmed OWCP’s July 15, 2008 decision denying his request for reconsideration on the grounds
that it was untimely and failed to establish clear evidence of error.6 In a March 5, 2009 order, the
Board set aside an August 12, 2008 decision denying reconsideration of a June 27, 2007 decision
denying appellant’s recurrence claim and remanded the case to OWCP for merit review.7 By
merit decision dated February 16, 2011, the Board affirmed OWCP’s August 14 and June 26,
2009 decisions in File No. xxxxxx397 and its August 13, 2009 decision in File No. xxxxxx587,
finding that: (1) appellant failed to establish that he sustained a recurrence disability
commencing March 3, 1980 due to his accepted September 23, 1975 employment injury;
(2) OWCP properly refused to reopen his claim for reconsideration of the merits in File No.
xxxxxx397 pursuant to 5 U.S.C. § 8128(a); and (3) it properly refused to reopen appellant’s
claim for reconsideration of the merits in File No. xxxxxx587 on the grounds that the request
was untimely and failed to establish clear evidence of error.8 In a July 29, 2011 order, the Board
denied appellant’s petition for reconsideration.9 In an order dated June 21, 2012, the Board

2

Docket No. 05-1682 (issued October 7, 2005).

3

Docket No. 06-1338 (issued November 30, 2006).

4

Docket No. 06-1337 (issued December 11, 2006). By order dated June 15, 2007, the Board denied appellant’s
petition for reconsideration. Docket No. 06-1337 (issued June 15, 2007). In an order dated April 16, 2008, the
Board dismissed appellant’s appeal of the December 11, 2006 decision on the grounds that he did not have the right
to appeal from the final decision of the Board. Docket No. 07-2155 (issued April 16, 2008).
5

Docket No. 07-0684 (issued March 23, 2007).

6

Docket No. 09-47 (issued February 20, 2009).

7

Docket No. 09-18 (issued March 5, 2009).

8

Docket No. 10-634 (issued February 16, 2011).

9

Docket No. 10-634 (issued July 29, 2011).

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dismissed his appeal of the February 16, 2011 decision on the grounds that he did not have the
right to appeal from the final decision of the Board.10
On February 20, 2013 appellant requested reconsideration and submitted a report dated
September 1975 from Dr. Robert L. Shore, a Board-certified orthopedic surgeon, who diagnosed
right lumbar muscle strain and a June 23, 1987 report from Dr. Hans Von Bauchitsch, a
psychiatrist, who found appellant so severely mentally impaired that he was totally unable to
pursue gainful employment.
By decision dated May 23, 2013, OWCP denied appellant’s request for reconsideration
on the grounds that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.11 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).12 One such limitation provides that an application
for reconsideration must be submitted within one year of the date of OWCP’s decision for which
review is sought.13 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).14
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.15
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.16 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.17 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish

10

Docket No. 11-1976 (issued June 21, 2012).

11

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

12

See Annette Louise, 54 ECAB 783, 789-90 (2003).

13

20 C.F.R. § 10.607(a).

14

See F.R., Docket No. 09-575 (issued January 4, 2010); Jesus D. Sanchez, supra note 11.

15

20 C.F.R. § 10.607(b).

16

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

17

See M.L., Docket No. 09-956 (issued April 15, 2010); Fidel E. Perez, 48 ECAB 663, 665 (1997).

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clear evidence of error.18 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.19 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.20
To establish clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.21 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that it abused its discretion in denying merit review in the
face of such evidence.22
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP regulations23 and procedures24 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.
However, a right to reconsideration within one year also accompanies any subsequent merit
decision on the issues,25 including any merit decision by the Board and any merit decision
following action by the Board.26 The most recent merit decision was dated February 16, 2011.
Appellant had one year from the date of this decision to make a timely request for
reconsideration. Since he did not file his request until February 20, 2013, approximately two
years later it was filed outside the one-year time period and was untimely filed. Consequently,
appellant must demonstrate clear evidence of error by OWCP in the denial of his claim.27
In order to establish clear evidence of error, a claimant must submit evidence relevant to
the issue which was decided by OWCP.28 The February 16, 2011 decision found that: appellant
18

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

19

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

20

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

21

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

22

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

23

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

24

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (January 2004); see
supra note 21.
25

See Robert F. Stone, 57 ECAB 292 (2005).

26

See n.24 supra at Chapter 2.1602.3.b (January 2004).

27

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

28

See Howard Y. Miyashiro, 51 ECAB 253 (1999).

4

failed to establish that he sustained a recurrence disability commencing March 3, 1980 due to his
accepted September 23, 1975 employment injury; OWCP properly refused to reopen his claim
for reconsideration of the merits in File No. xxxxxx397 pursuant to 5 U.S.C. § 8128(a); and it
properly refused to reopen his claim for reconsideration of the merits in File No. xxxxxx587 on
the grounds that the request was untimely and failed to establish clear evidence of error.
Along with his request for reconsideration, appellant submitted a report dated September
1975 from Dr. Shore, who diagnosed right lumbar muscle strain and a June 23, 1987 report from
Dr. Von Bauchitsch who found appellant so severely mentally impaired that he was totally
unable to pursue gainful employment. Medical evidence submitted by appellant is insufficient to
establish that OWCP committed an error. The reports were not relevant to the issue decided by
OWCP, namely whether appellant’s current conditions were causally related to the accepted
work injury. Therefore, they cannot establish clear evidence of error.29 The reports dated from
Drs. Shore and Von Bauchitsch essentially repeat information contained in prior documents and
fail to raise a substantial question as to the correctness of the Board’s decision. The term clear
evidence of error is intended to represent a difficult standard. The submission of a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.30
To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.31 The evidence submitted does not manifest on its face
that OWCP committed an error in denying appellant’s claim. Appellant has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of
error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not establish clear evidence of error.

29

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

30

See Joseph R. Santos, 57 ECAB 554 (2006).

31

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 16.

5

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 29, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

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)
)
)
)
)
)
)

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

Docket No. 10-1096
Issued: January 5, 2011

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 March 15, 2010 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated October 13, 2009 and January 21, 2010. Under 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained bilateral carpal tunnel or bilateral tendinitis of
the hands in the performance of duty.
FACTUAL HISTORY
Appellant, a 46-year-old mail clerk, filed a Form CA-2 claim or benefits on April 24,
2009, alleging that she developed an occupational condition causally related to employment
factors. She experienced pain and discomfort in both wrists, arms and shoulders, which she
attributed to repetitively handling mail of various weights.
On May 6, 2009 the Office advised appellant that it required factual and medical evidence
to determine whether she was eligible for compensation benefits. It asked her to submit a

comprehensive report from a treating physician describing her symptoms and the medical
reasons for her condition, an opinion as to whether her claimed condition was causally related to
her federal employment. The Office requested that appellant submit any evidence within 30
days.
In a May 22, 2009 statement, appellant’s supervisor, Linda Chavarin-Morales, noted that
appellant’s duties as a mail clerk involved sorting mail, lifting boxes and pushing a mail cart for
mail pick-up and deliveries. She advised that appellant was required to use a computer for a
portion of the mail function and to read e-mails. Ms. Chavarin-Morales advised that the mail clerk
position required repetitive motions to complete the tasks of the mail function.
On June 10, 2010 appellant stated that she was tasked with picking up mail by pushing a
mail cart which weighed more than 100 pounds, delivering mail to four floors in her building and
delivering boxes to the post office across the street four to five times per day.
In a June 18, 2009 report, Dr. James A. Moen, Board-certified in internal medicine,
placed appellant on light duty for four weeks with the following restrictions: avoiding repetitive
gripping and lifting and avoiding lifting more than five pounds.
By decision dated July 6, 2009, the Office denied the claim, finding that appellant failed
to submit medical evidence sufficient to establish that her claimed condition was related to
factors of employment.
In a May 6, 2009 Form CA-20 report, received by the Office on August 4, 2009,
Dr. James A. Taki, a specialist in family practice, stated that appellant was experiencing
numbness, tingling, Phalen’s wrist tendinitis and grip weakness. He diagnosed carpal tunnel
syndrome and wrist sprain and checked a box indicating that the conditions found were caused or
aggravated by an employment activity.
On August 11, 2009 appellant requested reconsideration.
On August 7, 2009 Dr. Cynthia G. Campbell, Board-certified in physical medicine and
rehabilitation, stated that electrodiagnostic studies revealed right-sided carpal tunnel syndrome of
moderate severity and very mild left-sided carpal tunnel syndrome.
In an August 12, 2009 report, Dr. Taki noted that the August 7, 2009 diagnostic studies
showed bilateral carpal tunnel syndrome. He placed appellant on light duty with the following
work restrictions: no lifting more than 2.5 pounds, no pushing or pulling carts and grasping and
fine manipulations for no more than 4 hours per day, 20 hours a week.
By decision dated October 13, 2009, the Office denied modification of the July 6, 2009
decision.
On November 23, 2009 appellant requested reconsideration. In a November 20, 2009
report, Dr. Taki stated that he was treating her for carpal tunnel syndrome and hand tendinitis.
He advised that these conditions precluded her from performing her usual work duties which
involved repetitive motions, handling, sorting and lifting mail. Appellant’s work aggravated her

2

symptoms and worsened her condition.
December 31, 2009.

Dr. Taki excused her from work through

A September 22, 2009 treatment note, received by the Office on December 2, 2009, from
Dr. Hanh V. Pham, a family practitioner, placed appellant off work for two weeks as of
September 22, 2009.
By decision dated January 21, 2010, the Office denied modification of the
October 13, 2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed bilateral carpal tunnel and hand
1

5 U.S.C. §§ 8101-8193.

2

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

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

3

tendinitis conditions and her federal employment. This burden includes providing medical
evidence from a physician who concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.5
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence providing a
rationalized opinion relating her claimed bilateral carpal tunnel and bilateral hand tendinitis to
factors of her federal employment. For this reason, appellant has not met her burden of proof to
establish her claim.
The reports from Drs. Moen and Taki related findings of lower back pain on examination
and diagnosed bilateral carpal tunnel syndrome and bilateral hand tendinitis. Neither physician,
however, provided a probative medical opinion addressing how the claimed conditions or
disability were causally related to employment factors. Dr. Moen placed appellant on light duty
with restrictions in a June 18, 2009 report, but did not attribute the restrictions to any
work-related condition. Dr. Taki opined that she had bilateral carpal tunnel syndrome and
bilateral tendinitis reports and indicated that these conditions were caused or aggravated by her
employment duties such as repetitive motions, handling, sorting and lifting mail. He also placed
appellant on light duty with restrictions.
The reports from Drs. Taki and Moen are of limited probative value as the physicians did
provide adequate medical rationale of how or why appellant’s claimed bilateral carpal tunnel and
bilateral hand tendinitis conditions were currently affected by or related to factors of
employment.6 The weight of 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 The physicians of record did not
sufficiently describe appellant’s job duties or explain the medical process through which such
duties would have been competent to cause the claimed conditions.
Dr. Taki did not explain how appellant’s job duties physiologically caused the diagnosed
conditions of bilateral carpal tunnel and bilateral hand tendinitis. His reports thus did not
constitute adequate medical evidence to establish that she claimed bilateral carpal tunnel and
bilateral hand tendinitis condition were causally related to her employment. The May 6, 2009
form report from Dr. Taki supported causal relationship with a checkmark. This evidence is
insufficient to establish the claim as the Board has held that a checked box is not sufficient to
establish causation as it lacks explanation or rationale.8

5

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

6

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

7

See Anna C. Leanza, 48 ECAB 115 (1996).

8

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

4

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her conditions were caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and she failed to submit such evidence.
The Office advised appellant of the evidence required to establish her claim; however,
she failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed bilateral carpal tunnel and bilateral hand tendinitis conditions were
causally related to her employment.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
claimed bilateral carpal tunnel and bilateral hand tendinitis conditions were sustained in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2010 and October 13, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 5, 2011
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

9

Id.

5


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

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)
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)
)

Appearances:
Keith D. Cleborne, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1274
Issued: March 18, 2010

Case Submitted on the Record

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

JURISDICTION
On April 17, 2009 appellant filed a timely appeal of decisions of the Office of Workers’
Compensation Programs dated June 30, 2008 and January 13, 2009 denying her emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On July 18, 2007 appellant, then a 47-year-old manager, filed an occupational disease
claim alleging that she developed post-traumatic stress syndrome (PTSD), general anxiety
disorder, panic disorder and depression due to factors of her federal employment. She first
realized that her condition was caused or aggravated by employment factors on April 27, 2007.
In an undated narrative statement, appellant identified incidents of employment that
allegedly caused or contributed to her emotional condition. She stated that her district manager,

Kate Wiley, created an atmosphere of fear and intimidation by making degrading, intimidating
and demoralizing statements in an inappropriate and intense voice. Ms. Wiley reportedly told
her staff, “I do n[o]t need you all to get promoted. I done been promoted five times in six years.
I [a]m just here to get the cloud off Central Florida’s head.” She told the staff that she could fire
everyone because they were noncompliant, and that she had “never seen such laziness.”
Ms. Wiley attacked the staff in a loud and aggressive manner, stating that they failed to meet any
of their goals. Her style was to “get in your face.” At an April 10, 2007 staff meeting,
Ms. Wiley berated appellant in front of her peers and subordinates regarding audit scores.
Appellant felt Ms. Wiley’s comments were an attack on her integrity and they made her feel
worthless. She indicated that Ms. Wiley’s management style was “set up for failure,” because it
was impossible to do what she expected within the allotted time. Ms. Wiley discouraged
feedback and exhibited a lack of trust
Appellant claimed that she was extremely stressed by her huge workload, due, in part, to
added responsibilities following the arrival of the new district manager and the increased time
required to address voluminous e-mails. She routinely worked 65 to 70 hours per week,
including Saturday. Appellant generally did not go to lunch and found it necessary to work
Saturdays and Sundays to meet the requirements of her position. The majority of her workday
involved preparing for daily telecoms and weekly staff meetings, where she was subjected to
very intense, rapid-fire interrogation, for which she was required to prepare extensively.
Appellant carried large binders to the meetings to support her responses to Ms. Wiley’s
questions. She spent 6 to 12 hours each week preparing for the staff meetings; however, her
presentation was often skipped and her efforts were wasted. The district manager also required
daily reports on 3700 carriers, a task appellant described as “overwhelming.” Ms. Wiley often
made last-minute requests for reports, which required appellant to work nights and weekends.
Appellant submitted a June 29, 2007 report from Dr. Christopher W. Conavay, a treating
physician, who diagnosed “PTSD, due to a long-term hostile work environment;” panic disorder
and generalized depression. In a July 18, 2007 report, Dr. Joseph L. Trim, a licensed mental
health counselor, diagnosed PTSD; panic disorder, generalized anxiety disorder and major
depression.
On August 20, 2007 the Office informed appellant that the information submitted was
insufficient to establish her claim and requested a detailed description of the conditions or
incidents she believed caused or contributed to her illness, as well as witness statements or other
evidence corroborating her allegations. It advised her to submit a medical report providing a
diagnosis and an opinion with an explanation as to how incidents of federal employment
contributed to the condition.
Appellant submitted witness statements from coworkers regarding her work environment.
On September 11, 2007 Sherry Siercks, manager, stated that Ms. Wiley did not treat her
employees with dignity or respect and that she personally witnessed her heap verbal abuse,
threats and injustices upon managers. The district manager allegedly targeted appellant as her
“main object of abuse” and publicly berated her. Staff meetings were “nothing more than attack
sessions for Ms. Wiley to publicly humiliate and belittle managers.” Ms. Wiley reportedly
stated: “I have never seen a group of people so lacksadasive;” “I do n[o]t need y[ou] all to get
promoted. I done got promoted five times in six years;” “You suck. Your performance in the
last three years sucks.” Manager Siercks stated: “Appellant was reduced to producing volumes
upon volumes of information for every single meeting with Wiley. Most of the time Kate would
2

try to find questions not contained in the material she indicated would be covered in order to
jump on [appellant] for not having the answer at her fingertips.”
On September 6, 2007 manager, Steve Hooks, stated that appellant was the target of
Ms. Wiley’s berating, belittling and abusive behavior. The district manager required that the
staff be available for telephone calls “24/7.” She routinely scheduled impromptu meetings
during nonwork periods. For example, one Friday afternoon during a 4:30 p.m. telecom,
Ms. Wiley instructed all managers to be sure they were in the office on Saturday. One Monday
night at 8:00 p.m., she directed all managers to reconvene immediately, because of poor job
performance. Mr. Hooks stated that appellant rarely went to lunch because she was preparing
documentation for the district manager, and she willingly worked 10 hours per day or more, as
well as weekends whenever necessary.
Appellant submitted a September 7, 2007 statement from Maxine Counts, manager of
human resources for the employing establishment. Ms. Counts indicated that she had witnessed
Ms. Wiley publicly degrade and abuse many of her personnel, including appellant, on numerous
occasions. Examples provided included Ms. Wiley’s statements that she could “fire everyone in
this room;” that her staff “sucked” and that she did not need them to obtain a promotion.
Ms. Counts stated: appellant was required to provide voluminous reports to the district manager
on a daily basis; to attend multiple daily teleconferences; to conduct teleconferences with little or
no notice; to prepare complex presentations for staff meetings and to respond to every question
asked by Ms. Wiley with a data sheet to support her answer. She reported that appellant always
worked an extended schedule of nine hours or more prior to Ms. Wiley’s appointment as district
manager and that, after her arrival, appellant worked more than 12 hours per day, Monday
through Friday, and spent time on weekends, as necessary. Ms. Counts noted that appellant
stopped eating lunch due to time constraints.
The record contains letters from some of Ms. Wiley’s former peers and subordinates,
who supported her management style. On September 14, 2007 Maribeth Norman, officer in
charge of the West Palm Beach location, stated that Ms. Wiley was responsible for the “positive
numbers” in the Central Florida Cluster. Judy Huang, the district manager’s secretary, indicated
that Ms. Wiley operated with enthusiasm and momentum and that she had never treated her in an
abusive manner. On September 12, 12007 manager Earl Flowers stated that Ms. Wiley was a
vital asset and that she was responsible for much progress in Central Florida. Jennifer
Stevenson, West Palm Beach plant manager, noted that the Central Florida district had made
great strides, largely due to Ms. Wiley’s effective management style. Kathy Hugging stated that
Central Florida was not set up for failure and that Ms. Wiley was bold and extremely strong in
her approach. Salvatore Vacca stated that Ms. Wiley had a great management style. Rufus
Graham indicated that Ms. Wiley helped turn the district around and that he did not feel
intimidated by her. David Kolp, Boca Raton postmaster, stated that Ms. Wiley was very
demanding, but that she did not engage in harassment or intimidation.
On October 2, 2007 the employing establishment controverted appellant’s claim. The
employing establishment noted that Ms. Wiley did not require appellant to work 70 hours per
week and holidays, nor did she ever set her schedule. It contended that the number of
teleconference calls, power point presentation, e-mails, etc. was “all part of the work
environment at all facilities,” and that Ms. Wiley had no control on the number of e-mails
received by any of her direct reports. The employing establishment stated that Ms. Wiley
followed proper procedure in obtaining advance approval of leave requests. Further, the
3

employing establishment defended the district manager’s management style, stating that she was
not loud and berating toward appellant, but rather was direct and firm with her information and
requests.
In an undated statement, Ms. Wiley responded to appellant’s allegations. Indicating that
she never mandated that appellant work 70 hours per week, she stated: “There has been long
work hours for everyone in order to bring the district up to speed, however I do not tell her which
hours to work and how long to work. [Appellant] obviously did not manage her time properly by
administering and delegating tasks and duties to her staff.” She further stated:
“I never scheduled [appellant] to work on a Sunday. If she did, she did this on her
own. I did require office visits by she and her staff on Saturdays to ensure
compliance issues at the beginning of FY 2007. The Quarter 1 performance was
very poor for Central Florida, and I not only assigned [appellant] tasks for
Saturdays, but other direct reports as well. They were not required to work the
entire day and it was [appellant’s] responsibility to schedule her staff within
reason. I am sure that this is not uncommon practice for the managers of
operations programs departments across the nation in every district.”
Ms. Wiley acknowledged the challenge of every manager in handling the large volume of
e-mails. She stated, however, that all managers throughout the country have the same problem,
and that she had no control over the number of e-mails received. Ms. Wiley acknowledged that
appellant was involved in the semi-weekly telecoms and weekly staff meetings, but stated that
she did not delegate duties within her department as necessary. She acknowledged that appellant
brought binders to the weekly staff meetings, but denied that she required her to do so.
Ms. Wiley denied speaking to appellant in a loud, berating manner or stating that she could fire
everyone. She informed appellant in her April 11, 2007 mid-year review that she needed to
delegate duties to her staff and to relinquish some duties that she finds overwhelming.
Ms. Wiley also noted that appellant needed to establish a better relationship with plant operations
and to hold “delivery” accountable for poor performance.
Appellant submitted an October 31, 2007 report from Douglas J. Mason, a licensed
clinical social worker, who diagnosed PTSD and depression from the work environment. The
record also contains October 18, 2007 notes from Dr. Conovay. Appellant submitted statements
from William Goble (retired manager), Robert King (Orlando postmaster), Alfred Milch (finance
manager), and David Kolp, reflecting agreement with some of the incidents described by
appellant.
By decision dated February 15, 2008, the Office denied appellant’s claim on the grounds
that she failed to establish any compensable factors of employment.
On March 1, 2008 appellant requested reconsideration. In support of her request, she
provided a December 12, 2008 psychiatric evaluation from Dr. Richard E. Seely, a Boardcertified psychiatrist.
In a decision dated June 30, 2008, the Office denied modification of its February 15,
2008 decision.

4

On September 15, 2008 appellant requested reconsideration. Her representative
contended that three factors contributed to appellant’s emotional condition, namely, an
unreasonable workload; a “6-alarm, fire-like” level of intensity created by Ms. Wiley and an
abusive work environment. The representative reiterated earlier allegations made regarding
appellant’s overwhelming work requirements and abusive behavior by the district manager.
The record contains a position description for manager of operations program support.
Functions included managing the ongoing review and evaluation of service and quality
performance at a major processing and distribution center and providing technical support to
small post offices within the area. Duties and responsibilities included managing the
development of local plans to implement national and area processing and distribution programs
and policies; managing the review and evaluation of local operations; ensuring that service and
quality goals were met; working with local managers to improve operations and procedures;
managing the development of local requirements for space, facilities, equipment and staffing;
working with local managers to develop economic justification, assess alternatives and determine
priorities; managing the activities of a very small size group of operations specialists; meeting
with customers, major mailers and suppliers on a regular basis to resolve problems and/or
improve service; participating in the development of the local operating budget; tracking budget
performance and ensuring that budget goals are met.
Appellant submitted a document entitled “Clear Expectations for Fiscal Year 2007.” Its
stated purpose was to define for appellant’s expectations of her performance that were not
defined under National Performance Assessment for remaining Fiscal Year 2007. Appellant’s
role in budget management was to assist customer service management in implementing
efficiency improvements to achieve the budget performance. She was informed that overnight
performance required improvement in order to achieve goal and that machine performance
needed to be addressed on a daily basis. Noting her responsibility for the administration of
USPS Safety Programs in her area of responsibility, appellant was directed, at a minimum, to
periodically review the mandatory safety programs that are required to be in place and to ensure
their continued compliance, and to ensure that all internal reviews conducted by her and her
staff, evaluate safety compliance in the employee environment and provide management with the
necessary information to correct problem areas.
In a December 28, 2006 memorandum, the employing establishment advised that,
beginning January 2007, managers were required to have face-to-face meetings with all
employees in each quarter. Further, the managers were required to forward documentation of
these meetings to human resources at the end of each quarter.
Appellant submitted minutes and transcripts of district staff meetings from October 6,
2006 through July 12, 2007. On October 6, 2006 Ms. Wiley outlined procedures to be followed
under her supervision. The district director would have weekly staff meetings with the
managers. Each manager would prepare a presentation to include slides, which were to be
provided to “I.T.” by noon on the day prior to the meeting, and full color pictures of the
presentation, which would be provided as a hand-out. In addition, Ms. Wiley would require
daily reports, which insured compliance with internal procedures; daily telecoms between plant
managers, MIPs, maritime managers, transportation managers and Tour 3 MDOs; daily telecoms
between MPOOs and level 26 PMs; quarterly meetings between plant managers and direct
reports; and semi-annual meetings between MPOOs, staff and 18 and below PMs.
5

At the October 13, 2006 staff meeting, Ms. Wiley directed the managers to provide her
with a daily “condition report,” which would include information on first class mail on hand,
plan failure, and delayed mail. She stated that, during the Christmas holidays, daily telecoms
would also occur on Sundays.
On January 4, 2007 Ms. Wiley instructed the managers to conduct a recognition
ceremony in February 2007, which would require them to shut down plant operations for 35 to
40 minutes. On January 9, 2007 she advised the managers that she expected them to be “running
full” on the Saturday, Sunday and Monday surrounding the Martin Luther King holiday. On
January 30, 2007 the district director established a procedure whereby the managers would
prepare a daily spreadsheet tracking work hours.
On February 19, 2007 Ms. Wiley stated, “My desire for [this] district is not to make me
famous, not to get me a bonus. I already done had four promotions in the last six years. I do
n[o]t need you all to get me another promotion. I have V.P.’s calling me wanting to take me any
day.”
On February 21, 2007 Ms. Wiley stated that overtime requests should be submitted to her
for her approval. On February 27, 2007 she advised the managers that they should be available
“24/7” for telephone calls. Ms. Wiley reiterated that they were to conduct telecoms six days per
week. She also ordered them to have a special telecom with their direct reports within 48 hours
to explain standard operating procedures.
April 10, 2007 minutes reflect that Ms. Wiley decided to forego the slides, due to the
large amount of material to be covered at the staff meeting. She directed all managers to be
vigilant in answering their cellular telephones and checking messages, noting that she would not
call during nonwork hours unless it was absolutely necessary. Ms. Wiley requested action plans
within 21 days to address the results of the audits. On May 7, 2007 she requested feedback
within the day on the items she presented at the staff meeting. Ms. Wiley discussed the
formation of an e-mail focus group, designed to address the large number of e-mails being sent
and received. She stated, “There is too much jamming up the system.” On June 19, 2007
Ms. Wiley announced certain procedural changes, which included prior approval for annual
leave and monthly meetings between managers and postmasters.
The record contains a September 25, 2008 letter from the Office of Personnel
Management granting appellant retirement disability. OPM found that she was disabled from her
position as Manager, OPS Program Support due to PTSD and major depressive disorder.
On November 10, 2008 Ms. Wiley again denied appellant’s allegations. She stated that
she “never demanded 24/7” of her managers; did not tell anyone that she could fire them at any
time and did not require appellant to work 70 hours per week. Ms. Wiley acknowledged that it
was not uncommon for a manager to come into the office on his own time to work on assigned
tasks.
In a December 15, 2008 statement, appellant’s representative contended that, as the
employing establishment had provided no evidence to rebut appellant’s allegations, they should
be accepted as factual.

6

By decision dated January 13, 2009, the Office denied modification of its previous
decision, on the grounds that appellant had failed to establish a compensable employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned work duties or to a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act. On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or her frustration from not being permitted
to work in a particular environment or to hold a particular position.1
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.2
Assignment of work is an administrative function of the employer,3 as is an investigation by the
employing establishment.4
Where the claimant alleges compensable factors of employment, she must substantiate
such allegations with probative and reliable evidence.5 The fact that a claimant has established
compensable factors of employment does not establish entitlement to compensation. The
employee must also submit rationalized medical opinion evidence establishing that she has an
emotional condition that is causally related to the compensable employment factor.6 The opinion
of the physician must be based on a complete factual and medical background, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific compensable employment
factors identified by appellant.7
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
incidents and conditions at work. The Board finds that appellant had identified a compensable
1

Lillian Cutler, 28 ECAB 125 (1976).

2

Michael Thomas Plante, 44 ECAB 510 (1993).

3

James W. Griffin, 45 ECAB 774 (1994).

4

Jimmy B. Copeland, 43 ECAB 339 (1991).

5

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

6

James W. Griffin, supra note 3.

7

Donna Faye Cardwell, 41 ECAB 730 (1990).

7

factor of employment. Therefore, this case is not in posture for a decision as to whether she
sustained an emotional condition in the performance of duty.
Appellant alleged that her district manager created a hostile work environment by making
degrading and demoralizing statements in a loud and abusive voice; discriminated against her by
targeting her in staff meetings; and humiliated her and took pleasure in berating her in front of
her peers and subordinates. In support of her claims, she submitted statements from witnesses
who alleged generally that Ms. Wiley set unreasonably high performance standards and
generally belittled, berated and abused appellant and other managers. Appellant has not
provided any evidence to corroborate a specific allegation of harassment or discrimination, as
required. The employing establishment denied these allegations and appellant has not submitted
sufficient evidence to establish that she was harassed by her supervisor, as alleged.8 Appellant
also alleged that Ms. Wiley set the district up for failure. However, the district manager denied
this allegation and, by setting high standards for her managers, acted in a manner that, instead,
set the district up for success. Thus, the Board finds that appellant has not established a
compensable employment factor under the Act with respect to these allegations.
The Board has recognized the compensability of verbal abuse in certain circumstances.
This does not imply, however, that every statement uttered in the workplace will give rise to
coverage under the Act.9 Appellant alleged that Ms. Wiley made degrading, intimidating and
demoralizing statements in an inappropriate and intense voice. She reportedly told her staff, “I
do n[o]t need you all to get promoted. I done been promoted five times in six years. I [a]m just
here to get the cloud off Central Florida’s head.” Ms. Wiley told the staff that she could fire
everyone because they were noncompliant, and that she had “never seen such laziness.” In a
loud and aggressive manner, she told her staff that they failed to meet any of their goals; that she
could “fire everyone in this room;” and that they “sucked.” Appellant stated that these
comments were an attack on her integrity, and they made her feel worthless. Assuming
arguendo that the statements were actually made, the Board finds that they do not constitute
verbal abuse or harassment. While the statements may have engendered offensive feelings, they
did not sufficiently affect the conditions of employment to constitute a compensable factor.10
The Board finds that appellant’s emotional reaction to Ms. Wiley’s statements must be
considered self-generated.11
Appellant alleged that Ms. Wiley routinely scheduled impromptu meetings; requested
immediate responses to the items she presented at a staff meeting; operated at a “6-alarm, firelike” level of intensity; often skipped appellant’s presentations in staff meetings; and required
prior approval for annual leave and overtime. These allegations relate to administrative or
personnel matters, unrelated to her regular or specially assigned work duties, and do not fall

8

See Joel Parker, Sr., supra note 5 at 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
9

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, 42 ECAB 783(1991).

10

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

11

See David S. Lee, 56 ECAB 602 (2005).

8

within the coverage of the Act.12 Although the handling of disciplinary actions and leave
requests, the assignment of work duties and the monitoring of work activities are generally
related to the employment, they are administrative functions of the employer and not duties of
the employee.13 However, the Board has also found that an administrative or personnel matter
will be considered to be an employment factor where the evidence discloses error or abuse on the
part of the employing establishment. In determining whether the employing establishment erred
or acted abusively, the Board has examined whether the employing establishment acted
reasonably.14
In this case, appellant has not submitted sufficient evidence to show that the employing
establishment committed error or abuse with respect to these matters. Ms. Wiley explained that
her actions were designed to improve the performance of the Central Florida district. While
appellant has indicated a dislike for Ms. Wiley’s intense and demanding style, she has not shown
any evidence of abuse regarding her established policies. The Board finds that the district
manager’s actions were reasonable, given the nature of her task to quickly improve the
performance of her district, and appellant has not provided evidence to the contrary. Appellant
submitted statements from coworkers who corroborated her statements. These statements do not
provide evidence of error or abuse on the part of the employing establishment. Consequently,
appellant has not established a compensable factor of employment in this regard.
The record reflects that the Office of Personnel Management found that appellant was
disabled from her position as Manager, OPS Program Support due to PTSD and major
depressive disorder. However, OPM’s determination, by itself, does not establish that workplace
harassment or unfair treatment occurred.15 Where an employee alleges harassment and cites
specific incidents, the Office or other appropriate fact-finder must determine the truth of the
allegations. The issue is whether the claimant, under the Act, has submitted sufficient evidence
to establish a factual basis for the claim by supporting her allegations with probative and reliable
evidence.16 Appellant has failed to do so in this case.
Appellant alleged that Ms. Wiley’s “in your face” management style was demoralizing.
She contended that it discouraged feedback and exhibited a lack of trust. However, the Board
has held that an employee’s dissatisfaction with perceived poor management constitutes
frustration from not being permitted to work in a particular environment and is not compensable
under the Act.17

12

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath,
44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 126667 (1988).
13

Id.

14

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

15

James E. Norris, 52 ECAB 93 (2000). See also Parley A. Clement, 48 ECAB 302 (1997).

16

See James E. Norris, supra note 15. See also Michael Ewanichak, 48 ECAB 354 (1997).

17

See Cyndia R. Harrill, 55 ECAB 522 (2004) (the Board noted that claimant’s reaction to perceived poor
management must be considered self-generated in that it resulted from her frustration in not being permitted to work
in a particular environment.)

9

The Board has held that emotional reactions to situations in which an employee is trying
to meet her regularly or specially assigned position requirements are compensable.18 In
Joseph A. Antal,19 a tax examiner filed a claim alleging that his emotional condition was caused
by the pressures of trying to meet the production standards of his job. The Board, citing the
principles of Cutler,20 found that the claimant was entitled to compensation. In Tina D.
Francis,21 where appellant claimed that stress related to her regular and specially assigned
supervisory duties caused her emotional condition, the Board found that she had established
compensable employment factors.
The evidence of record establishes that appellant was required to provide voluminous
reports to the district manager on a daily basis; to attend multiple daily teleconferences; to
conduct teleconferences with little or no notice; to prepare complex presentations for staff
meetings; and to respond to questions asked by Ms. Wiley with a data sheet to support her
answer. The evidence also establishes that appellant always worked an extended schedule of
nine hours or more prior to Ms. Wiley’s appointment as district manager and that, after her
arrival, appellant worked more than 12 hours per day, Monday through Friday, and spent time on
weekends, as necessary. Ms. Wiley denied that she ever required appellant to work a 70-hour
week. She noted that everyone had worked long hours in order to bring the district up to speed,
but that she had not told appellant which hours to work, or how long to work. However, it is
appellant’s emotional reaction to the requirements imposed by the employer that triggers
coverage under the Act. In this case, she has claimed that stress related to her regular and
specially assigned duties caused her emotional condition. Given that these duties were part of
her job requirements, the Board finds that she has established compensable employment factors.
In the present case, appellant has established employment factors with respect to the
above-described work duties. As she has established compensable employment factors, the
Office must base its decision on an analysis of the medical evidence. The Office found there
were no compensable employment factors and did not analyze or develop the medical evidence.
The case will be remanded to the Office for this purpose.22 After such further development as
deemed necessary, the Office should issue an appropriate decision on this claim.
On appeal, appellant contends that her emotional condition was the result of a toxic work
environment and abuse of discretion. For reasons stated above, the Board finds appellant’s
argument to be without merit.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
sustained an emotional condition in the performance of duty. As appellant has established
18

See Tina D. Francis, 56 ECAB 180 (2004). See also Georgia F. Kennedy, 35 ECAB 1151, 1155 (1984);
Joseph A. Antal, 34 ECAB 608, 612 (1983).
19

34 ECAB 608 (1983).

20

Supra note 1.

21

Supra note 18.

22

See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

10

employment factors as described above, the case is remanded to the Office for analysis and
development of the medical evidence as it deems necessary and for issuance of an appropriate
merit decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 13, 2009 and June 30, 2008 are set aside, and the case is
remanded to the Office for proceedings consistent with this decision of the Board.
Issued: March 18, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Orlando, FL, Employer
__________________________________________

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Appearances:
Ronald Webster, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1237
Issued: May 3, 2017

Case Submitted on the Record

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

JURISDICTION
On May 24, 2016 appellant, through counsel, filed a timely appeal from a March 21,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied modification of its January 14, 2015
decision.
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.

FACTUAL HISTORY
In a claim adjudicated by OWCP under File No. xxxxxx661, OWCP accepted that
appellant, then a 42-year-old customs and border protection officer, sustained injuries in a motor
vehicle accident on February 27, 1990. The accepted injuries were: closed fracture of left rib(s);
contusion of left shoulder and upper arm; closed fracture of right carpal bone; closed fractures of
bilateral tibia and fibula; fractures of phalanges of left third and fourth toes of foot; and tear of
medial meniscus of the right knee. Appellant returned to work following this injury.
In a claim adjudicated under File No. xxxxxx318, OWCP accepted that on July 24, 2007
appellant sprained his right ankle and the medial collateral ligament of his right knee when he
fell down stairs. It later expanded File No. xxxxxx318 to include aggravation of degenerative
arthritis of the right knee. Appellant subsequently returned to work for intermittent periods until
he underwent a total arthroplasty of the right knee on October 31, 2008. He was placed on the
periodic compensation roll in December 2008.3
In June 2009, appellant was referred for vocational rehabilitation. Based on labor market
analysis prepared by the vocational rehabilitation specialist, by letter dated January 6, 2010,
OWCP proposed to reduce appellant’s entitlement to monetary compensation due to his ability to
earn wages as a telecommunication dispatcher. By decision dated February 19, 2010, OWCP
reduced appellant’s compensation based on his ability to earn wages in the constructed position
of telecommunication dispatcher.4
OWCP granted appellant a schedule award for 10 percent permanent impairment of the
right upper extremity on June 15, 2010. On June 24, 2010 it granted him a schedule award for
40 percent permanent impairment of the right lower extremity. On January 18, 2011 a hearing
representative of OWCP’s Branch of Hearings and Review affirmed the June 15, 2010 schedule
award determination.
In a July 15, 2011 decision, OWCP denied appellant’s claim to expand File No.
xxxxxx661 to include back and gait conditions. Appellant requested an oral hearing. On
February 2, 2012 an OWCP hearing representative vacated the July 15, 2011 decision and
remanded the case for further medical development. Following further development, on
August 9, 2012 OWCP additionally accepted abnormality of gait under File No. xxxxxx661.
On August 29, 2011 appellant also filed a claim for compensation (Form CA-7) for the
period April 18, 2011 to August 29, 2011. By decision dated October 31, 2011, OWCP denied
that appellant sustained a recurrence of disability commencing April 18, 2011. Appellant
requested an oral argument. On May 25, 2012 an OWCP hearing representative set aside the
October 31, 2011 decision and remanded the case to OWCP for further development of the
medical evidence.
3

On January 29, 2010 OWCP administratively combined File Nos. xxxxxx661 and xxxxxx318, with the former
serving as the master file.
4

The record at that time indicated that appellant had applied for Office of Personnel Management (OPM)
retirement benefits and was receiving 30 percent disability from the Department of Veterans Affairs (VA). In
OWCP EN1032 forms signed by appellant on September 12, 2010 and September 7, 2011, he affirmed that he was
receiving both OPM and VA benefits.

2

In a de novo merit decision dated November 7, 2012, OWCP again denied that appellant
sustained a recurrence of disability on April 18, 2011. The November 7, 2012 decision was
affirmed by an OWCP hearing representative on May 30, 2013.
Appellant, through counsel, requested reconsideration on April 24 and
December 15, 2014. In merit decisions dated July 23, 2014 and January 14, 2015, OWCP denied
modification of the prior decisions, finding that appellant failed to establish a recurrence of
disability commencing April 18, 2011.
Appellant, through counsel, again requested reconsideration on May 26, 2015. In a merit
decision dated March 21, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 OWCP procedures provide, “If a formal loss of
wage-earning capacity (LWEC) decision has been issued, and the claim is for recurrent
disability, it should be processed in accordance with procedures for modifying a formal
LWEC.”6 Once the wage-earning capacity of an injured employee is determined, a modification
of such determination is not warranted unless there is a material change in the nature and extent
of the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous. The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
ANALYSIS
The Board finds that this case is not in posture for decision. In its March 21, 2016
decision, OWCP applied the standard for a timely request for reconsideration rather than the
standard for modifying an LWEC decision.
In its March 21, 2016 decision, before the Board in this appeal, OWCP noted that in both
its July 23, 2014 and January 14, 2015 decisions it had found the medical evidence insufficient to
establish that appellant incurred a clinically-observable material worsening of the accepted
conditions to establish a recurrence of disability. The March 21, 2016 decision concluded that
the evidence presented was not of sufficient probative value to alter the January 14, 2015
decision. The proper issue in this case is whether the February 19, 2010 LWEC determination
should be modified.
The Board has held that, when an LWEC determination has been issued and a claimant
submits evidence alleged to show disability for work, OWCP must evaluate the evidence to
5

See Sharon C. Clement, 55 ECAB 552 (2004).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12 (February 2013).

7

Sue A. Sedgwick, 45 ECAB 211 (1993).

3

determine if modification of wage-earning capacity is warranted.8 As noted above, OWCP’s
procedures direct the claims examiner to consider the criteria for modification when a claimant
alleges recurrent disability.9
The Board will therefore remand the case to OWCP for adjudication, under the proper
standard of review for requests for recurrence of disability after a wage-earning capacity decision
has issued, to be followed by an appropriate merit decision to preserve appellant’s appeal
rights.10
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: May 3, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

K.R., Docket No. 09-28 (issued September 16, 2009).

9

Supra note 6.

10

R.L., Docket No. 16-72 (issued February 11, 2016).

4