United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WEAPONS STATION, China Lake, CA,
Employer
__________________________________________

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

Docket No. 12-1688
Issued: February 13, 2013

Case Submitted on the Record

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

JURISDICTION
On August 6, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decision dated July 26, 2012 which denied a request for a
review of the written record pursuant to 5 U.S.C. § 8124(b)(1) under claim number xxxxxx204.
He also appealed a May 9, 2012 OWCP decision which denied a request for a review of the
written record under claim number xxxxxx616. Because more than 180 days has elapsed since
the most recent merit decisions, dated May 18, 2010 in claim number xxxxxx204 and April 26,
2010 in claim number xxxxxx616, and the filing of this appeal on August 6, 2012, the Board
lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE -- CLAIM NOS. xxxxxx204 & xxxxxx616
The issue is whether OWCP abused its discretion in denying appellant’s request for a
review of the written record.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY -- CLAIM NO. xxxxxx204
This claim has previously been before the Board. In a May 18, 2010 decision, the Board
affirmed a December 19, 2008 decision which denied appellant’s claim for an attendant’s
allowance and a March 20, 2009 decision which denied his request for reconsideration.2 In a
July 26, 2006 decision, the Board affirmed an October 11, 2005 OWCP decision which found his
reconsideration request as untimely and failed to establish clear evidence of error.3 The facts of
the case are set forth in the Board’s prior decisions and are incorporated herein by reference.
On August 13, 2010 appellant requested reconsideration of the denial of an attendant
allowance for the period prior to 1999. Appellant noted that, prior to January 4, 1999, OWCP
regulations did not require that personal care services be provided by a licensed practical nurse
or similarly trained individual.
Appellant submitted an August 2, 2006 report from Dr. Coates who treated appellant
since 1991 for paranoid schizophrenia. Dr. Coates noted that appellant’s wife was unable to
work outside the home as she attended to his needs. He requested that appellant be provided an
attendant’s allowance due to his ongoing paranoia and inability to function in simple activities of
daily living without the care and direction of his spouse.
In a decision dated November 10, 2011, OWCP denied appellant’s reconsideration
request on the grounds that the evidence submitted was insufficient to warrant further merit
review.
In an appeal request form dated November 15, 2011, appellant requested a review of the
written record and reconsideration.
In a letter dated December 8, 2011, OWCP informed appellant that his appeal request
form selected two avenues of appeal and instructed him to select one review option. In an appeal
request form received on December 19, 2011, appellant requested a review of the written
record.4
In a decision dated July 26, 2012, OWCP denied appellant’s request for a review of the
written record. It found that, since appellant had previously requested reconsideration on the
2

Docket No. 09-1947 (issued May 18, 2010).

3

Docket No. 06-201 (issued July 26, 2006). OWCP accepted appellant’s claim for neck strain, herniated disc at
C5-6 and later accepted a permanent aggravation of paranoid schizophrenia. It authorized a cervical laminectomy
fusion which was performed on February 17, 1984.
Appellant was granted disability retirement on
February 28, 1985. He later elected to receive benefits under FECA.
4

On June 4, 2012 appellant submitted an appeal request form and requested reconsideration. No decision date
was noted on the form.
In a July 17, 2012 letter, OWCP noted appellant’s June 4, 2012 request for reconsideration and advised that it was
unclear which decision or issues he was requesting reconsideration. It advised that no further action would be taken
on his request until appellant provided clarification of the issues and decisions for which he sought reconsideration.

2

same issue, he was not entitled to a review of the written record as a matter of right. Appellant
was informed that his case had been considered in relation to the issues involved, and that the
request was further denied for the reason that the issues in this case could be addressed by
requesting reconsideration from OWCP and submitting evidence not previously considered.
FACTUAL HISTORY -- CLAIM NO. xxxxxx616
This claim has previously been before the Board. In an April 26, 2010 decision, the
Board affirmed a September 11, 2008 decision which denied appellant’s claim for compensation
as it was untimely filed. The Board also affirmed an OWCP decision dated October 7, 2008
which denied appellant’s request for reconsideration.5 The facts of the case are set forth in the
Board’s prior decisions and are incorporated herein by reference.6
By letter dated August 12, 2010, appellant requested reconsideration. He asserted that his
emotional condition claim was timely filed as his supervisor had knowledge of the injury within
30 days.
In a decision dated November 8, 2010, OWCP denied appellant’s application for
reconsideration without conducting a merit review.
On November 15, 2011 appellant requested a review of the written record.
In a decision dated May 9, 2012, OWCP denied appellant’s request for a review of the
written record. It found that, since appellant had previously requested reconsideration on the
same issue, he was not entitled to a review of the written record as a matter of right. Appellant
was informed that his case had been considered in relation to the issues involved, and that the
request was further denied for the reason that the issues in this case could be addressed by
requesting reconsideration from OWCP and submitting evidence not previously considered.
LEGAL PRECEDENT -- CLAIM NOS. xxxxxx204 & xxxxxx616
Section 8124(b)(1) of FECA provides that “before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.”7 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.8 OWCP’s regulations provide that the request must be
5

Docket No. 09-1499 (issued April 26, 2010).

6

On September 15, 2007 appellant, then a 53-year-old retired accounting technician, filed an occupational disease
claim alleging that he had a nervous breakdown at work and developed paranoid schizophrenia. He first became
aware of his condition and realized it was caused or aggravated by his employment in March 1994. Appellant’s
employer noted that he last worked on May 6, 1994 and had been off the employment rolls since being granted
disability retirement on July 25, 1994.
7

5 U.S.C. § 8124(b)(1).

8

20 C.F.R. § 10.615.

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sent within 30 days of the date of the decision for which a hearing is sought and also that “the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.”9
Additionally, the Board has held that OWCP, in its broad discretionary authority in the
administration of FECA,10 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that OWCP must exercise this discretionary
authority in deciding whether to grant a hearing.11 OWCP procedures, which require OWCP to
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of FECA and Board precedent.12
ANALYSIS -- CLAIM NO. xxxxxx204
Appellant’s request for a review of the written record dated November 15, 2011 was denied
on the grounds that he had previously requested reconsideration pursuant to 5 U.S.C. § 8128(a).13
In its July 26, 2012 decision, OWCP noted that, while he was not entitled to a review of the written
record as a matter of right, it had considered the matter in relation to the issue involved and, under
its discretionary authority, denied the request as appellant could pursue his claim further by
requesting reconsideration and submitting rationalized medical evidence in support of his claim.
In the instant case, appellant’s request for a review of the written record, dated
November 15, 2011, was made after OWCP issued its November 10, 2011 decision on his request
for reconsideration made pursuant to 5 U.S.C. § 8128. Hence, OWCP correctly found that
appellant was not entitled to a review of the written record before an OWCP hearing representative
as a matter of right as he had previously requested reconsideration.
In its July 26, 2012 decision, OWCP acknowledged that, although there was no entitlement
to an oral hearing or a review of the written record, it could allow such an oral hearing or review of
the written record within its discretion. It properly exercised its discretion by indicating that it had
also denied appellant’s hearing request on the basis that the case could be equally well addressed
by requesting reconsideration and submitting additional medical evidence. There is no evidence
of an abuse of discretion in this case.14

9

Id. at § 10.616(a).

10

5 U.S.C. §§ 8101-8193.

11

Marilyn F. Wilson, 52 ECAB 347 (2001).

12

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
13

See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was
made after OWCP issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and
therefore appellant was not entitled to an oral hearing before an OWCP hearing representative as a matter of right).
14

See Daniel J. Perea, 42 ECAB 214 (1990).

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ANALYSIS -- CLAIM NO. xxxxxx616
Appellant’s request for a review of the written record dated November 15, 2011 was denied
on the grounds that he had previously requested reconsideration pursuant to 5 U.S.C. § 8128(a).15
In its May 9, 2012 decision, OWCP noted that, while he was not entitled to a review of the written
record as a matter of right, it had considered the matter in relation to the issue involved and, under
its discretionary authority, denied the request as he could pursue his claim further by requesting
reconsideration and submitting rationalized medical evidence in support of his claim.
In the instant case, appellant’s request for a review of the written record, dated
November 15, 2011, was made after OWCP issued its November 8, 2010 decision on his request
for reconsideration made pursuant to 5 U.S.C. § 8128. Hence, OWCP correctly found that
appellant was not entitled to an oral hearing or a review of the written record before an OWCP
hearing representative as a matter of right as he had previously requested reconsideration.
In its May 9, 2012 decision, OWCP acknowledged that, although there was no entitlement
to an oral hearing or a review of the written record, it could allow such an oral hearing or review of
the written record within its discretion. It properly exercised its discretion by indicating that it had
also denied appellant’s hearing request on the basis that the case could be equally well addressed
by requesting reconsideration and submitting additional medical evidence. There is no evidence
of an abuse of discretion in this case.16
On appeal in claim numbers xxxxxx204 and xxxxxx616 appellant asserts that he was
entitled to compensation and an attendant allowance since 1994. As explained, the Board does
not have jurisdiction over the merits of his claims. Instead, it only has jurisdiction to consider
whether OWCP properly denied appellant’s request for a review of the written record. As noted
above, OWCP correctly found that he was not entitled to a review of the written record before an
OWCP hearing representative.
CONCLUSION
The Board therefore finds that OWCP properly denied appellant’s request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1) in claim numbers xxxxxx204 and xxxxxx616.

15

See supra note 13.

16

See Perea, supra note 14.

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2012 Office of Workers’
Compensation Programs’ decision in claim number xxxxxx204 and the May 9, 2012 OWCP
decision in claim number xxxxxx616 are affirmed.
Issued: February 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Salem, VA, Employer
__________________________________________

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

Docket No. 20-1166
Issued: April 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 18, 2020 appellant filed a timely appeal from an April 22, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right ankle sprain
causally related to the accepted February 8, 2017 employment incident.
FACTUAL HISTORY
On January 9, 2020 appellant, then a 37-year-old deportation officer, filed a traumatic
injury claim (Form CA-1) alleging that on February 8, 2017 he sprained his right ankle when
1

5 U.S.C. § 8101 et seq.

jumping over a six-foot wall on an obstacle course while in the performance of duty. On the
reverse side of the claim form, appellant’s supervisor acknowledged that he was injured while in
the performance of duty. Appellant did not stop work.
In a development letter dated January 28, 2020, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim. It advised him of the type of factual
and medical evidence necessary to establish his claim and attached a questionnaire for his
completion. OWCP afforded appellant 30 days to respond.
In a January 28, 2020 memorandum, appellant explained that the delay in reporting that his
injury had occurred was because he was injured on the second day of a training program and was
unfamiliar with the steps to be taken to report the injury.
By decision dated March 4, 2020, OWCP found that the February 8, 2017 incident
occurred as alleged, but denied appellant’s claim finding that he had not submitted any evidence
containing a medical diagnosis in connection with the accepted February 8, 2017 employment
incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On March 17, 2020 appellant requested reconsideration and submitted additional evidence.
In a February 8, 2017 report, Dr. Joe S. Greene, a Board-certified family practitioner,
diagnosed a mild sprain of the right ankle. On February 9, 2017 he diagnosed a mild sprain of the
right ankle, resolving.
Dr. Christopher C. Catterson, a Board-certified orthopedic surgeon, noted in a February 12,
2020 report that appellant injured his right ankle in 2017 when he jumped over a six-foot wall
during a training exercise at work. He diagnosed right ankle pain since 2017. Dr. Catterson
reviewed a February 12, 2020 x-ray of appellant’s right ankle and indicated that he had right ankle
pain of unspecified chronicity.
By decision dated April 22, 2020, OWCP denied modification of its March 4, 2020
decision, finding that appellant had not submitted medical evidence sufficient to establish causal
relationship between the diagnosed right ankle condition and the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and that
2

Id.

3

See D.F., Docket No. 20-0631 (issued September 23, 2020); J.W., Docket No. 18-0678 (issued March 3, 2020);
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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any disability or medical condition for which compensation is claimed is 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 upon 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. The second component is whether the employment incident
caused a personal injury.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.7 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 specific employment factors identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right ankle
sprain causally related to the accepted February 8, 2017 employment incident.
In support of his claim appellant submitted reports dated February 8 and 9, 2017, from
Dr. Greene, who diagnosed a mild sprain of the right ankle. Dr. Greene’s reports did not address
the cause of appellant’s condition. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.9
OWCP also received a February 12, 2020 report from Dr. Catterson who noted appellant’s
history of injury and diagnosed right ankle pain since 2017. The Board has held that pain is a
4
J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8
R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

See M.S., Docket No. 20-0437 (issued July 14, 2020); R.Z., Docket No. 19-0408 (issued June 26 2019); P.S.,
Docket No. 18-1222 (issued January 8, 2019); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket
No. 17-1549 (issued July 6, 2018).

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symptom and not a compensable medical diagnosis.10 A medical report lacking a firm diagnosis
is of no probative value.11 As such, the report of Dr. Catterson is insufficient to meet appellant’s
burden of proof.
As appellant has not submitted rationalized medical evidence establishing that his right
ankle sprain was causally related to the accepted February 8, 2017 employment incident, the Board
finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his right
ankle sprain was causally related to the accepted February 8, 2017 employment incident.

10

See C.C., Docket No. 19-1071 (issued August 26, 2020); S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y.,
Docket No. 20-0112 (issued June 25, 2020).
11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the April 22, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 13, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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
__________________________________________
L.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
AUDIE MURPHY, San Antonio, TX, Employer
__________________________________________

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

Docket No. 15-274
Issued: March 23, 2015

Case Submitted on the Record

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

JURISDICTION
On November 18, 2014 appellant filed a timely appeal from a May 23, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a hearing.
Because more than 180 days elapsed from the most recent merit decision dated October 9, 2013
to the filing of this appeal, 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 the case.2
ISSUE
The issue is whether OWCP properly denied a request for an oral hearing.3
1

5 U.S.C. § 8101 et seq.

2

An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
3

The Board notes that appellant requested a review of the written record. OWCP, however, in its May 23, 2014
decision, refers to appellant’s request as a request for oral hearing.

FACTUAL HISTORY
On May 29, 2013 appellant, then a 47-year-old nurse, filed a traumatic injury claim and
claim for compensation alleging that on February 14, 2013 she had pulled or strained her left
biceps muscle while carrying a box from her car to the clinic, a distance of over 600 to 700 feet.
She stated that the injury occurred in the parking lot of the Lackland Air Force Base. There is no
indication that she stopped work.
By decision dated October 9, 2013, OWCP denied the claim as the evidence was
insufficient to establish that the injury and/or medical condition arose during the scope of
employment or within the scope of compensable work factors. It specifically noted that
appellant had stopped by the American Cancer Society on her way to work on February 14, 2013
to pick up patient education materials and the employing establishment stated in its August 6,
2013 statement that, at the time of injury, appellant was not at a place of employment and had no
entitlement to reimbursement for travel.
On April 9, 2014 appellant requested a review of the written record. On the appeal
request form, she noted this was the second request and the original request was dated
December 12, 2013. The request was postmarked April 9, 2014. Several medical reports were
also submitted.
By decision dated May 23, 2014, OWCP denied appellant’s request for a hearing on the
grounds that it was not timely filed within 30 days of the October 9, 2013 decision. It exercised
its discretion by performing a limited review of the evidence and further denied her request as
the issue in the case could be addressed equally well pursuant to a valid request for
reconsideration.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant not satisfied with a decision of
OWCP has a right, upon timely request, to a hearing before an OWCP representative.4 Section
10.615 of Title 20 of the Code of Federal Regulations provide that a hearing is a review of an
adverse decision by an OWCP hearing representative. Initially, the claimant can choose between
two formats: an oral hearing or a review of the written record.5
A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark or other carrier’s date marking of
the request.6 OWCP has discretion, however, to grant or deny a request that is made after this

4

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Joe Brewer, 48 ECAB 411 (1997).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

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30-day period.7 In such a case, it will determine whether to grant a discretionary hearing and, if
not, will so advise the claimant with reasons.8
ANALYSIS
By decision dated October 9, 2013, OWCP denied appellant’s claim for compensation as
the evidence did not establish that she was injured in the performance of duty. Appellant
requested a review of the written record on an appeal request form dated and postmarked
April 9, 2014. OWCP denied her request by decision dated May 23, 2014 as it was filed more
than 30 days after OWCP’s October 9, 2013 decision.
Appellant’s letter requesting an oral hearing was postmarked on April 9, 2014, more than
30 days after issuance of the October 9, 2013 decision. Thus, OWCP properly found that her
request for an oral hearing was not timely filed under section 8124(b)(1) of FECA and that she
was not entitled to a hearing as a matter of right. While she indicated that this was her second
request, there is no evidence of record to support an earlier request for review of the written
record, or any other review, made prior to April 9, 2014.9
OWCP exercised its discretion and denied appellant’s request for a hearing on the
additional grounds that she could address the issue in her case equally well by submitting
relevant evidence accompanying a valid request for reconsideration. Because reconsideration
exists as an alternative review right to address the issues raised by OWCP’s October 9, 2013
decision, the Board finds that OWCP did not abuse its discretion in denying appellant’s untimely
request for an oral hearing.10
On appeal appellant argues the merits of her case. However, as previously noted, the
Board does not have jurisdiction over the merits of this case. Appellant also submitted evidence
on appeal. However, the Board may only review evidence that was in the record at the time
OWCP issued its final decision.11
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a hearing as
untimely.

7

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

8

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

9

The Board notes that a December 12, 2013 request for hearing would also not have been filed within 30 days of
October 9, 2013.
10

See Gerard F. Workinger, 56 ECAB 259 (2005).

11

See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Xenia, OH, Employer
__________________________________________

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

Docket No. 08-2222
Issued: July 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2008 appellant filed a timely appeal from a June 20, 2008 decision of the
Office of Workers’ Compensation Programs denying her claim for a recurrence of total
disability. 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 a recurrence of total disability beginning May 9,
2008 causally related to her May 22, 2003 employment injury.

FACTUAL HISTORY
On May 22, 2003 appellant, then a 41-year-old mail carrier, filed an occupational disease
claim for a left foot injury due to constant walking while carrying mail. The Office accepted her
claim for bilateral plantar fibromatosis, bilateral hallux rigidus, a March 29, 2007 left foot
cheilectomy and first metatarsal osteotomy with fixation and a July 19, 2007 right foot
cheilectomy and first metatarsal osteotomy of the right foot with fixation. On February 4, 2008
appellant returned to work for one day and then stopped work for clarification of her work
restrictions.1 She returned to work on February 20, 2008 in a light-duty capacity with
restrictions of no lifting or carrying more than 10 pounds, sitting limited to 7 hours, standing
limited to 1 hour, but no more than 10 minutes at a time, only occasional bending and stooping
and the use of a CAM walker (an orthopedic boot) on her left foot.
On April 4, 2008 the employing establishment advised appellant that she would be
removed from her position effective May 9, 2008 for improper conduct and misrepresentation of
her medical restrictions. A supervisor stated that on December 18, 2007 appellant received a
letter instructing her to report for a predisciplinary interview. On December 20, 2007 appellant
contacted Postmaster Steve Stapleton and told him that it was not legal for her to drive, that her
feet were not healing properly and she did not want to return to work at the employing
establishment because no one there liked her. On March 12, 2008 the supervisor interviewed
appellant, who advised that she was never totally incapacitated. Following appellant’s foot
surgeries, she needed only crutches. She advised that her physician told her that it was not legal
for her to drive with a CAM walker. Appellant wore the walker all day, except when sleeping.
The supervisor stated that from November 6, 2007 to January 15, 2008 special agents from the
employing establishment’s Office of Inspector General (OIG) observed appellant driving,
shopping, walking, raking leaves and attending to other personal tasks. He stated that
investigative videotapes of appellant’s activities demonstrated that she was capable of
performing the sedentary job offered to her. On January 10, 2008 an OIG agent interviewed
Dr. Gregory L. Barbour, appellant’s attending podiatrist, about her work restrictions. Appellant
informed Dr. Barbour that she was attempting to obtain a mounted route (a delivery route for
which the letter carrier uses a vehicle as opposed to a foot delivery route) but the employing
establishment could not accommodate her request. She never told Dr. Barbour that sedentary
work was available within her restrictions. Dr. Barbour provided the OIG agent with a duty
status report indicating that appellant could work with standing and walking limited to one hour
a day and sitting for six hours a day. On February 4, 2008 the employing establishment offered a
light-duty position within appellant’s restrictions. Appellant refused to sign the job offer until
she could discuss it with her assigned nurse. On February 19, 2008 she accepted the job offer
under protest. The supervisor noted that on May 10, 2005 appellant had signed a statement
acknowledging that she was responsible for notifying her treating physician when there was
work available within her restrictions for her accepted foot conditions. He indicated that her
failure to so advise her physician was an improper attempt to remain off work as long as
possible. The supervisor stated that appellant had attempted to bypass her assigned supervisor
1

In a February 5, 2008 letter, the employing establishment stated that it made a valid light-duty job offer within
appellant’s work restrictions. Appellant refused the position because of personal problems with Craig Moore, a
supervisor.

2

by contacting Jeffery Whitehair, a retired postmaster, to complete the employing establishment
portion of her compensation claim forms.2 He advised appellant that her actions violated
employing establishment standards of conduct which required employees to be honest, reliable
and trustworthy and of good character and reputation. The conduct standards required that, when
off-duty, employees were prohibited from engaging in criminal, dishonest or other conduct
prejudicial to the employing establishment. The supervisor advised that the severity of
appellant’s misconduct warranted removal from her position.
On May 21, 2008 appellant filed a claim for a recurrence of total disability beginning
May 9, 2008. She alleged that the employing establishment improperly terminated her
employment and falsely accused her of misrepresenting her medical restrictions. By decision
dated June 20, 2008, the Office denied appellant’s claim on the grounds that the evidence did not
establish that she sustained a recurrence of total disability beginning May 9, 2008 causally
related to her May 22, 2003 employment injury.3
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty job requirements.4 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
2

A February 25, 2008 OIG investigative memorandum shows that Mr. Whitehair advised an agent that he
completed several compensation forms for appellant while he was retired from the employing establishment. He
indicated that he did so to help appellant because she was a personal friend. Mr. Whitehair acknowledged that he
wrote the name of Kenneth Strickland at the bottom of the forms, rather than his name, because Mr. Strickland was
the correct contact person. He acknowledged that he was retired and no longer represented the employing
establishment in any official capacity. Mr. Whitehair admitted that he contacted the employing establishment
officials in order to obtain information regarding appellant’s claim. He stated that he should not have gotten
involved in appellant’s compensation claim but he wanted to help his friend. Appellant acknowledged in an OIG
interview that Mr. Whitehair completed compensation forms and submitted them for her. She admitted to signing
the compensation documents with knowledge that Mr. Whitehair had not verified the accuracy of her representations
regarding her compensation claim. A February 28, 2008 OIG final investigative report concluded that appellant
engaged in a pattern of deceptive or contradictory behavior in order to extend her compensation benefits and/or
manipulate her modified job offer.
3

Subsequent to the June 20, 2008 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
4

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986);

5

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Maurissa Mack, 50 ECAB 498, 503 (1999).

3

ANALYSIS
Appellant has the burden to provide medical evidence establishing that she was totally
disabled beginning May 9, 2008 due to a worsening of her accepted bilateral foot conditions or a
change in her job duties such that she was unable to perform her light-duty work.
The record establishes that the employing establishment terminated appellant from her
position effective May 9, 2008 for improper conduct and misrepresentation of her medical
restrictions. The termination of appellant’s employment is supported by documentation which
includes an OIG investigative report and admissions by her and Mr. Whitehair regarding the
completion of forms related to her compensation claim.
The Board finds that appellant failed to establish that she was totally disabled beginning
May 9, 2008 due to a change in the nature and extent of her employment-related foot conditions
or a change in the nature and extent of her light-duty job requirements.
Title 20 C.F.R. § 10.5(x) provides:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn (except when such withdrawal occurs
for reasons of misconduct, nonperformance of job duties or a reduction-in-force),
or when the physical requirements of such an assignment are altered so that they
exceed his or her established physical limitations.”
As noted, Office regulations provide that the withdrawal of a light-duty position by the
employing establishment for reasons of misconduct by the employee does not constitute a
recurrence of total disability. Based on the evidence of record, the Office properly denied her
claim for a recurrence of total disability as appellant was terminated from employment due to
misconduct.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a recurrence of total
disability beginning May 9, 2008 causally related to her May 22, 2003 employment-related
bilateral foot conditions.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2008 is affirmed.
Issued: July 23, 2009
Washington, DC

David S. Gerson, Judge
Employees' Compensation Appeals Board

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

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

5


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

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

Docket No. 08-674
Issued: August 22, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 9, 2008 appellant filed a timely appeal from the September 28, 2007 merit
decision of the Office of Workers’ Compensation Programs, which reduced her compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to reflect a
capacity to earn wages in the constructed position of property manager.
FACTUAL HISTORY
On October 20, 2004 appellant, then a 40-year-old transportation security screener,
sustained a left knee injury in the performance of duty: “Heavy bags -- extensive standing -bending ? knee began to have pain and burning sensation -- swelling at knee cap, burning at back
of knee.” The Office accepted her claim for left knee strain and paid compensation for

temporary total disability on the periodic rolls. It approved a March 17, 2005 arthroscopy with a
chondroplasty of the patella and synovectomy. The Office expanded its acceptance to include
internal derangement of the left knee and medial meniscus tear. Appellant received a schedule
award for a five percent permanent impairment of her left lower extremity.
On July 15, 2005 appellant underwent a functional capacity evaluation. Three days later
her orthopedic surgeon reported that she could return to work with permanent restrictions against
lifting more than 20 pounds from floor to knuckle or lifting more than 25 pounds from waist to
overhead. He discharged her from regular medical attention.
When the employing establishment declined to offer appellant modified employment, the
Office referred her for vocational rehabilitation services. The rehabilitation counselor conducted
a labor market survey. Based upon the medically determinable residuals of the injury, and taking
into consideration all significant preexisting impairments and pertinent nonmedical factors, the
rehabilitation counselor found that appellant was able to perform the job of property manager.
The rehabilitation counselor found that appellant met the specific vocational preparation
requirement, as this was the same job she had held for 10 years in the private sector. The
rehabilitation counselor confirmed that the position was being performed in sufficient numbers
so as to make it reasonably available to appellant within her commuting area. On March 30,
2007 the rehabilitation counselor provided the Office with the latest wage and local employment
information.
On April 25, 2007 Dr. Richard Colyer, a specialist in emergency medicine and
appellant’s attending physician, reported that his physical examination of her left knee was
within normal limits: healed scars; nontender; no effusion; no swelling; full range of motion; no
ligamental instability.
Lower extremity reflexes were symmetrical; sensation normal;
neurovascular intact; full strength 5/5. Although appellant reported continued pain in her left
lower extremity and ankle, as well as right hip pain and difficulty sleeping at night secondary to
pain, Dr. Colyer concluded that “the effects of the work injury have ceased at this time.” Based
on the functional capacity evaluation performed on July 15, 2005, he recommended a “lightmedium” physical demand level with limited lifting from floor to knuckle at 20 pounds or less
and lifting from waist to overhead at 25 pounds. Dr. Colyer recommended that appellant pursue
complaints unrelated to her left knee with her primary physician.
On August 22, 2007 the Office notified appellant that it proposed to reduce her
compensation for wage loss because the evidence showed she was not totally disabled for all
work and had the capacity to earn wages as a property manager. It noted that her capacity to
earn wages in the position was greater than the current pay of the job she held when she was
injured, so she no longer had a loss of wage-earning capacity. The Office proposed to reduce her
compensation for wage loss to zero.
Appellant argued that the constructed position of property manager was not medically
suitable because of inclines and grades on the sites, required use of stairways and duties that
exceeded her medical restrictions. She explained that her duties would require her to climb stairs
and walk through units to inspect the work of contractors and vendors. Appellant stated that she
was not physically capable of removing property from a unit during an eviction and could not
perform other duties that might be necessary, such as purchasing a 10-ream box of standard

2

paper, which weighs over 50 pounds, or securing an 80-pound television as a lien against unpaid
rent. She stated that she was intellectually and vocationally capable of being hired at a lower
level to achieve over time the position of property manager, but that medically she was not suited
to either. Appellant stated that her physical limitations would likely result in heavy burdens on
staff members beneath her and “will cause termination of my held position by the company.”
In a decision dated September 28, 2007, the Office reduced appellant’s compensation for
wage loss to reflect a capacity to earn wages in the constructed position of property manager.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.1
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.2
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.3
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by actual earnings, if actual earnings fairly and reasonably represent a
wage-earning capacity. If the actual earnings do not fairly and reasonably represent a wageearning capacity or if the employee has no actual earnings, the employee’s wage-earning
capacity as appears reasonable under the circumstances is determined with due regard to the
nature of the injury, the degree of physical impairment, the employee’s usual employment, age
and qualifications for other employment, the availability of suitable employment and other
factors or circumstances that may affect wage-earning capacity in the employee’s disabled
condition.4
When the Office makes a medical determination of partial disability and of the specific
work restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist
for selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles
or otherwise available in the open labor market, that fits the employee’s capabilities in light of
his or her physical limitations, education, age and prior experience. Once this selection is made,
a determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.5
1

Harold S. McGough, 36 ECAB 332 (1984).

2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f) (1999).

4

5 U.S.C. § 8115(a).

5

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953).

3

ANALYSIS
Following her employment injury on October 20, 2004, appellant received compensation
for temporary total disability. At the time of her July 15, 2005 functional capacity evaluation,
her disability had become only partial. Appellant’s orthopedic surgeon released her to return to
work with permanent lifting restrictions. On April 25, 2007 Dr. Colyer, the attending physician,
confirmed that appellant remained partially disabled for work. He repeated the lifting
restrictions and recommended a position with a light-to-medium physical demand level.
Given this information, and the fact that appellant had no actual earnings from modified
employment at the employing establishment or from a successful placement with a private
employer, the Office appropriately referred her to an Office rehabilitation specialist for the
selection of a position that fit her capabilities in light of her physical limitations, education, age
and prior experience. As the rehabilitation specialist is an expert in the field of vocational
rehabilitation, the Office may rely on his or her opinion as to whether a job is vocationally
suitable and reasonably available.6
The rehabilitation counselor selected the job of property manager from the Dictionary of
Occupational Titles. The job’s physical demand level fit Dr. Colyer’s recommendation. It was
sedentary to light and required only occasional lifting up to 20 pounds. Appellant also met the
job’s specific vocational preparation requirement. She had previously worked as a property
manager in the private sector. In addition to endorsing the vocational suitability of the job, the
rehabilitation counselor confirmed that the job was being performed in sufficient numbers so as
to make it reasonably available to appellant within her commuting area.
Appellant objected to the constructed position contending that, it is not medically
suitable. But she based her objections on physical demands that do not appear in the Dictionary
of Occupational Titles, such as lifting 80-pound televisions or 50-pound boxes of office paper.
The job of property manager is classified as sedentary or light, and the position description
makes clear that the property manager arranges for management services and employs or
contracts for services, including on-site management personnel if required. There is nothing in
the description that implies the manager must assist contractors or vendors or staff members with
any heavy lifting that might be required. Appellant’s argument that she would be fired for
placing a heavy burden on staff members is speculative and without basis in the record.
The Board finds that the Office met its burden to justify a reduction of appellant’s
compensation for temporary total disability. The Office gave due regard to appropriate factors
and properly determined appellant’s wage-earning capacity as appeared reasonable under the
circumstances. Because the latest wage information showed that the average weekly wage for a
property manager exceeded the current pay for appellant’s date-of-injury position, the Office
properly reduced appellant’s compensation for wage loss to zero. Appellant no longer had an
incapacity, because of the employment injury, to earn the wages she was receiving at the time of
injury. The Board will affirm the Office’s September 28, 2007 decision.

6

Wilson Clow, Jr., 44 ECAB 157 (1992).

4

CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation to reflect her
capacity to earn wages in the constructed position of property manager.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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Appearances:
L. Hugh Kemp, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0655
Issued: August 22, 2018

Case Submitted on the Record

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

JURISDICTION
On February 5, 2018 appellant, through counsel, filed a timely appeal from an August 17,
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 to consider 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.

ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
effective August 20, 2017 because she had failed to complete and return a Form CA-1032 as
requested.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On August 29, 1975 appellant, then a 24-year-old machine distribution clerk, was injured
in the performance of duty when a console panel from a zip mail translator (ZMT) machine fell
and hit her on the top of the head. She stopped work on August 29, 1975.4 OWCP accepted
appellant’s traumatic injury claim for head contusion, concussion, post-traumatic anxiety neurosis,
and schizophrenic reaction. It paid appellant continuation of pay from August 30 to
October 13, 1975. OWCP subsequently began paying her compensation for temporary total
disability.
By decision dated November 19, 1999, OWCP reduced appellant’s wage-loss
compensation based on her ability to earn wages in the selected position of receptionist. When the
case was last on appeal to the Board, it affirmed OWCP’s November 19, 1999 loss of wage-earning
capacity (LWEC) determination. In its April 2, 2003 decision, the Board also found that appellant
failed to establish a basis for modifying the LWEC determination.5 Since this Board decision,
OWCP has continued to pay appellant wage-loss compensation every 28 days based on the
November 19, 1999 LWEC determination.6
Over the years, OWCP periodically requested that appellant submit financial disclosure
statements (Form CA-1032), which solicited information about her employment, volunteer work,
dependent(s) status, receipt of other federal benefits and/or payments, and third-party settlements.
Appellant routinely complied with OWCP’s requests.7
On June 30, 2017 OWCP mailed her a Form CA-1032 to ascertain from her whether she
had any earnings from employment in the past 15 months, and/or any monetary or in-kind
3

Docket No. 03-0219 (issued April 2, 2003); Docket No. 01-1527 (issued August 16, 2002); Docket No. 86-1354
(issued July 31, 1986); and Docket No. 82-1979 (issued September 30, 1982).
4

The employing establishment terminated appellant’s services effective May 15, 1977.

5

Docket No. 03-0219 (issued April 2, 2003).

6

The latest merit decision regarding entitlement to wage-loss compensation for temporary total disability and/or
modification of the November 19, 1999 LWEC determination was issued on September 18, 2009.
7
The record reveals that from 2009 to 2016 OWCP mailed appellant CA-1032 forms for her completion and
appellant returned the documents completed within the time allotted.

2

compensation for volunteering. The form was sent to appellant’s last known address. The letter
accompanying the form specifically advised that appellant’s benefits would be suspended if she
failed to return the form within 30 days pursuant to 20 C.F.R. § 10.528. OWCP did not receive
the requested Form CA-1032 within the time allotted.
By decision dated August 17, 2017, OWCP suspended appellant’s wage-loss compensation
benefits, effective August 20, 2017. The decision advised that, if she completed and returned the
financial disclosure form, her benefits would be restored retroactively to the date of suspension.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the manner
and at the times the Secretary specifies.8
Under 20 C.F.R. § 10.528 of OWCP’s regulations, an employee in receipt of compensation
benefits must complete an affidavit as to any work or activity indicating an ability to work which
the employee has performed in the previous 15 months. If an employee who is required to file
such a report fails to do so within 30 days of the date of the request, his or her right to compensation
for wage loss is suspended until OWCP receives the requested report.9 At that time, OWCP will
reinstate compensation retroactive to the date of suspension if the employee remains entitled to
compensation.10
ANALYSIS
On June 30, 2017 OWCP provided appellant with a Form CA-1032. It notified her that
federal regulations required her to complete the form and answer all questions about her earnings
and employment activities for the previous 15 months.11 OWCP properly notified her that, if she
did not completely answer all the questions and return the form within 30 days, her benefits would
be suspended. The record demonstrates that the form was mailed to appellant’s address of record.12
The record shows no response from appellant prior to the August 17, 2017 decision. The
Board thus finds that OWCP properly suspended appellant’s compensation benefits effective

8

5 U.S.C. § 8106(b).

9

Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius Beverly, 53 ECAB 189 (1997).

10

M.W., Docket No. 15-0507 (issued June 18, 2015); R.R., Docket No. 13-0528 (issued June 13, 2013).

11

See Kevin Igo, 49 ECAB 191 (1997) (the Board held that appellant must complete and return Form CA-1032
and that suspension of compensation was proper sanction for failure to do so).
12

I.A., Docket No. 15-1168 (issued November 4, 2015).

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August 20, 2017.13 The Board has consistently held that suspension of benefits is proper for failure
to complete and return a Form CA-1032.14
On appeal counsel contends that OWCP, in its August 2017 decision, wrongfully denied
appellant one hundred percent disability benefits. The issue of whether OWCP’s LWEC
determination was proper is not currently before the Board.15 As noted, appellant failed to
complete Form CA-1032 as required by federal regulations within the allotted time. OWCP,
therefore, properly suspended her compensation benefits, effective August 20, 2017.16
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective August 20, 2017 because she failed to complete and return a Form CA-1032 as requested.

13

J.J., Docket No. 09-1724 (issued March 1, 2010).

14

Supra note 12.

15

See supra note 6; 20 C.F.R. § 501.3(e).

16

See supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the August 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2018
Washington, DC

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

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

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

5


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

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

Docket No. 14-0716
Issued: August 27, 2015

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 February 11, 2014 appellant, through counsel, filed a timely appeal from an
October 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
December 18, 2012 causally related to an accepted cervical strain and right knee contusion
accepted under File No. xxxxxx431, and a left rotator cuff injury accepted under File No.
xxxxxx385.
FACTUAL HISTORY
OWCP accepted that on August 8, 2012 appellant then a 67-year-old part-time flexible
city carrier, sustained a cervicothoracic sprain/strain and a right knee contusion when he tripped,
and fell on even ground while delivering mail. Appellant sought treatment at a hospital
1

5 U.S.C. § 8101 et seq.

emergency room at the time of injury. Dr. Pira Maria Garibaldi, an attending physician
specializing in emergency medicine, diagnosed a neck strain and right knee contusion.2 OWCP
assigned the claim File No. xxxxxx431.
On August 18, 2012 appellant accepted a modified position as a part-time flexible letter
carrier for four hours a day, driving a vehicle up to three and a half hours and walking for half an
hour each shift. He returned to work on August 20, 2012 and continued in the part-time lightduty position through December 20, 2012.
Dr. Laura Ross, an attending osteopathic physician Board-certified in orthopedic surgery,
found appellant able to continue light-duty work through December 20, 2012 with intermittent
absences. In an October 8, 2012 report, she diagnosed a right medial meniscal tear, right
shoulder impingement syndrome, cervical sprain/strain, and right thumb tendinitis.3 Dr. Ross
recommended right knee arthroscopy. In an October 31, 2012 note, she held appellant off work
until November 12, 2012 related to the August 8, 2012 injuries. On November 12, 2012
Dr. Ross opined that the August 8, 2012 fall caused right rotator cuff tears with tendinosis, and
impingement, in addition to internal derangement of the right knee.
In a December 20, 2012 note, Dr. Ross stated that appellant was “unable to work on
Dec[ember] 18th due to his r[ight] knee (which is a work-related injury).” She prohibited him
from driving and from reaching above shoulder level.
In January 16, 2013 reports, Dr. Frederic A. Kleinbart, an attending Board-certified
orthopedic surgeon, found appellant able to work four hours a day light duty, with pushing,
pulling, and lifting limited to 10 pounds. He prescribed physical therapy, and administered
cortisone injections to the right knee.
On January 25, 2013 appellant filed a notice of recurrence of disability (Form CA-2a)
asserting that the accepted conditions worsened on December 18, 2012 such that he was no
longer able to perform his light-duty job. He worked part time through December 20, 2012, then
stopped work.4
In a January 25, 2013 letter, OWCP advised appellant of the additional evidence needed
to establish his claim for recurrence of disability, including a statement from his attending
physician supporting a change in the nature, and extent of the accepted conditions, factual
evidence confirming a “withdrawal of a modified assignment,” or factual evidence establishing a

2

On August 24, 2012 Dr. Siddiq A. Faisal, an attending physician Board-certified in family practice, diagnosed a
cervical strain, right thumb strain, and right knee contusion.
3

A September 6, 2012 magnetic resonance imaging (MRI) scan showed a partial rotator cuff tear of the right
shoulder. A September 28, 2012 MRI scan of the right knee showed a complex medial meniscal surface tear,
posterior cruciate ligament tear or synovitis, extensive patellar tendinosis, joint effusion, osteoarthritis, and
chondromalacia.
4

OWCP paid intermittent wage-loss compensation on the supplemental rolls from November 3, 2012 to
March 22, 2013.

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change in his modified job duties such that they exceeded his physical limitations. Appellant
was afforded 30 days to submit such evidence.5
Appellant submitted additional reports from Dr. Kleinbart dated from January 16 to
February 18, 2013, restricting appellant to limited duty for four hours a day, with lifting limited
to 20 pounds, and no working or reaching above shoulder level. Dr. Kleinbart diagnosed a right
posterior cruciate ligament tear or sprain, right medial meniscal tear, degenerative arthritis of the
right knee, a cervical strain, degenerative arthritis of the cervical spine, and possible bulging
cervical discs.
In a February 14, 2013 report, Dr. Kleinbart noted treating appellant for left shoulder, left
elbow, left wrist pain, and numbness accepted under File No. xxxxxx385, noting that this was a
separate claim from the right lower extremity injury.6 On examination, he noted restricted
motion of the left elbow, a mildly positive Tinel’s sign at the cubital tunnel, slight grip weakness
on the left, diffuse blunted sensation over the left thumb, index, and middle fingers, and
degenerative cervical disc disease. Dr. Kleinbart reviewed a 2012 electromyogram of the left
upper extremity showing severe carpal tunnel syndrome. He diagnosed degenerative arthritis of
the cervical spine, cervical radiculopathy, left shoulder impingement, epicondylitis of the left
elbow, and left carpal tunnel syndrome.
By decision dated March 4, 2013, OWCP denied appellant’s claim for recurrence of
disability commencing December 18, 2012 on the grounds that causal relationship was not
established. It found that the medical evidence did not support that the accepted cervical sprain,
and right knee contusion under File No. xxxxxx431 worsened spontaneously on December 18,
2012 such that he was disabled from his light-duty job.7 Counsel requested video hearing,
scheduled for July 17, 2013.
In an April 3, 2013 report, Dr. Kleinbart noted that an MRI scan of the left shoulder
performed the previous week showed a “high grade partial rotator cuff tear” and
acromioclavicular arthritis. He recommended left shoulder arthroscopy. Dr. Kleinbart renewed
prior work restrictions for the upper extremities, limiting fine manipulation to two hours a day,
5

On January 29, 2013 the employing establishment offered appellant a modified city carrier position, with
required reaching, and climbing. In a February 20, 2013 letter, counsel submitted a copy of the January 29, 2013
employing establishment job offer, with annotations indicating that appellant could not climb, kneel, or reach above
the shoulder as required. He asserted that the annotations were made by Dr. Kleinbart, and established that the
offered position was not suitable work.
6

On May 2, 2012 appellant filed an occupational disease claim for conditions involving her left arm due to
repetitive duties in claim File No. xxxxxx385. OWCP accepted this claim for aggravation of left carpal tunnel
syndrome, left lateral epicondylitis, left shoulder sprain, and left forearm tendinitis. It also later authorized a left
shoulder rotator cuff repair that was performed on May 6, 2013. This claim has been combined with the present
claim File No. xxxxxx431. See infra.
7

OWCP offered appellant modified-duty positions on January 29 and April 28, 2013. Counsel asserted that both
jobs required standing, grasping, and fine manipulation in excess of Dr. Kleinbart’s restrictions regarding the left
upper extremity and right lower extremity, limiting standing, and grasping to four hours a day, fine manipulation to
two hours a day, and no reaching or working above shoulder level. On April 12, 2013 OWCP performed an
informal loss of wage-earning capacity calculation, finding a 50 percent loss of wage-earning capacity as appellant
was able to work four hours a day but was not working. It placed his case on the periodic rolls as of April 7, 2013.

3

simple grasping to four hours a day, and no reaching above the shoulder. Each of these
limitations placed the activities below the number of hours required to perform the offered
position. Appellant underwent left shoulder surgery on May 6, 2013. Dr. Kleinbart held him off
work.
In a June 18, 2013 letter, OWCP noted that appellant underwent authorized left shoulder
surgery on May 6, 2013 under File No. xxxxxx385. It would “begin compensation payments
under case File No. [xxxxxx]385 for full disability.”8 Beginning on May 6, 2013 OWCP
instructed appellant to submit all additional claims for compensation under File No. xxxxxx385.
In a June 26, 2013 letter, it advised him that it had combined File No. xxxxxx431 with File No.
xxxxxx385.
On July 15, 2013 Dr. Kleinbart performed a partial right medial meniscectomy, partial
synovectomy, and excision of multiple loose bodies, authorized by OWCP. He held appellant
off work through August 15, 2013. Appellant participated in physical therapy through
September 2013.9
At the July 17, 2013 video hearing, appellant explained that the employing establishment
withdrew his light-duty position on December 20, 2012 as Dr. Ross mistakenly indicated on a
December 20, 2012 duty status report that he was unable to drive.10 Counsel asserted that the
withdrawal of appellant’s modified light-duty job constituted a recurrence of disability. He
contended that appellant was entitled to receive compensation for four hours a day from
December 20, 2012 through May 6, 2013, the date of left shoulder surgery for accepted injuries
sustained under File No. xxxxxx385.
By decision dated and finalized October 21, 2013, an OWCP hearing representative
affirmed the March 4, 2013 denial of appellant’s claim for recurrence of disability. She found
that he did not submit medical evidence explaining how and why the accepted neck strain or
right knee contusion would disable him from work on and after December 18, 2012. The hearing
representative noted that “Drs. Kleinbart and Ross failed to provide a rationalized opinion
explaining how the claimed recurrence of December 18, 2012 [was] due to the August 8, 2012
work injury.” She did not address counsel’s argument regarding the withdrawal of light-duty
work on December 20, 2012. Also, the hearing representative did not mention that OWCP had
doubled appellant’s claims as of June 26, 2013, or refer to the left shoulder surgery.
LEGAL PRECEDENT
OWCP’s implementing regulations define a “recurrence of disability” as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
8

Appellant was terminated from the employing establishment on June 2, 2013.

9

In September 13, 2013 reports, Dr. Rikin Patel, an attending osteopathic physician Board-certified in physiatry
and pain management, noted administering an epidural steroid injection at C7-T1 to address ongoing cervical
radiculopathy, and degenerative disc disease.
10

In a July 25, 2013 letter, Dr. Ross stated that on December 20, 2012, she intended the duty status report to
indicate that appellant could drive no more than four hours a day using an automatic shift. The restriction should
have remained in place through May 6, 2013.

4

condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.11 This term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury is
withdrawn or when the physical requirements of such an assignment are altered such that they
exceed the employee’s physical limitations.12 Appellant has the burden of establishing that there
was no medically appropriate light duty available for the claimed period.13
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence, a recurrence of total
disability, and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.14 This includes the necessity of
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
employment factors, and supports that conclusion with sound medical reasoning.15 An award of
compensation may not be made on the basis of surmise, conjecture, speculation, or on
appellant’s unsupported belief of causal relation.16
ANALYSIS
Under File No. xxxxxx431, OWCP accepted that appellant sustained a cervicothoracic
strain, and a right knee contusion on August 8, 2012. Under File No. xxxxxx385, it accepted
several left arm conditions and authorized a left rotator cuff tear. Following the August 8, 2012
injuries, appellant returned to light-duty work on August 20, 2012, continuing in the position
through December 20, 2012.
Appellant claimed a recurrence of disability commencing on December 18, 2012, the date
Dr. Ross, an attending Board-certified orthopedic surgeon, held him off work due to right knee
symptoms related to the accepted injury. Dr. Kleinbart, an attending Board-certified orthopedic
surgeon, followed appellant beginning in January 2013 for the right knee injury as well as the
left shoulder injury. In a February 14, 2013 report, he described a left rotator cuff tear, as well as
left elbow, and wrist conditions, related to File No. xxxxxx385. Dr. Kleinbart provided work
restrictions against reaching and working above shoulder level, prolonged grasping, and fine
manipulation, and lifting more than 20 pounds. OWCP denied the recurrence claim by decision
11

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
12

J.F., 58 ECAB 124 (2006).

13

Id.

14

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

15

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

16

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

5

issued March 4, 2013, finding that there was insufficient medical rationale supporting a
worsening of the accepted right knee contusion and cervical sprain.
On May 6, 2013 appellant underwent left shoulder surgery, approved by OWCP, for
injuries sustained under File No. xxxxxx385. OWCP paid total disability compensation
beginning on May 6, 2013. It doubled File No. xxxxxx385 with File No. xxxxxx431 effective
June 26, 2013. Appellant then underwent authorized right knee surgery on July 15, 2013.
OWCP conducted a video hearing in the case on July 17, 2013 at which counsel asserted
that the employing establishment withdrew appellant’s light-duty position on
December 20, 2012. Counsel contended that the withdrawal of light duty constituted a
recurrence of total disability. By an October 21, 2013 decision, the hearing representative
affirmed the March 4, 2013 denial of the recurrence claim, finding that the additional medical
evidence did not establish a causal relationship between appellant’s condition beginning
December 18, 2012 and the accepted right knee contusion and cervical sprain. The Board finds,
however, that the October 21, 2013 decision did not address the totality of the evidence and
issues properly before him.
In the October 21, 2013 decision, the hearing representative found only that there was
insufficient medical rationale to establish that the accepted right knee contusion and cervical
sprain disabled appellant for work on and after December 18, 2012. However, she did not
mention the torn left rotator cuff accepted under File No. xxxx385, or that File No. xxxxxx385
had been doubled with File No. xxxxxx431. The hearing representative did not address the
upper extremity work limitations imposed by Dr. Kleinbart, restrictions relevant to the
determination of appellant’s fitness-for-duty for the claimed period. The Board finds that she
should have addressed the evidence under File No. xxxxxx385, which had been combined with
File No. xxxxxx431 on June 26, 2013, prior to the July 17, 2013 hearing. OWCP’s June 26,
2013 letter explained that the claims had been doubled, and how compensation would be paid
from May 6, 2013, the date of the left shoulder surgery under File No. xxxxxx385. As the
hearing representative failed to address the accepted left shoulder injury and surgery, the case
will be remanded to OWCP for additional development. On remand of the case, OWCP shall
conduct appropriate development to determine if evidence submitted under either File No.
xxxxxx385 or xxxxxx431 demonstrates that appellant sustained a recurrence of disability
commencing December 18, 2012 as claimed. Following such development, it shall issue a de
novo decision in the case to preserve appellant’s appeal rights.
The Board notes that, pursuant to the July 17, 2013 hearing, and on appeal, counsel
asserted that the employing establishment withdrew light duty on December 20, 2012. On
appeal, counsel referred to the Board’s decision in Terry L. Hedman17 and OWCP’s procedures
which define a recurrence of disability as the withdrawal of light duty.18 The hearing
representative did not address this argument in the October 21, 2013 decision. However, as
stated above, it is appellant’s burden of proof to establish that light duty was in fact withdrawn.19
17

38 ECAB 222 (1989).

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Case/Disability Management, Chapter 2.1500.2(b)
(June 2013).
19

Supra note 12.

6

While it is evident from the record that appellant stopped work on December 20, 2012, there is
insufficient evidence that the work stoppage was due to a withdrawal of light duty and not the
claimed worsening of an accepted medical condition. Counsel also contended that the medical
evidence established a worsening of the accepted conditions on or about December 18, 2012.
The case will be remanded to OWCP for additional development, including consideration of the
medical evidence under both of appellant’s claim files.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to OWCP for additional development, to be followed by issuance of a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 21, 2013 is set aside, and the case remanded to OWCP
for additional development consistent with this decision and order.
Issued: August 27, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Northglenn, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-827
Issued: August 23, 2007

Case Submitted on the Record

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

JURISDICTION
On February 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 23, 2007 regarding her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an injury causally
related to compensable work factors.
FACTUAL HISTORY
On May 24, 2004 appellant filed an occupational disease claim (Form CA-2) alleging that
she sustained stress, anxiety and depression as a result of her federal employment. She also
indicated that her arthritis and hereditary hemorrhagic telangiectasia was aggravated by her
stress. According to appellant, she felt increasing pressure from management to do her job in
less time and she was called in for discussions several times.

In a narrative statement, appellant indicated that she began working on route 4166 in
July 2003 and this route had 611 dismount stops. She stated that she had trouble completing the
route in eight hours and “management was pushing to go faster everyday.” According to
appellant management told her to complete the route in eight hours but she felt the route was
longer than eight hours. She alleged that management was intimidating her and she made
mistakes from trying to go too fast. Appellant indicated that on March 22, 2004 she was
reprimanded for being late the previous week and on May 1, 2004 she was called in for a
meeting regarding unauthorized overtime use.
In a June 14, 2004 statement, a supervisor, Kathy Walls, noted that on May 1, 2004
appellant was called into the office for a meeting regarding unauthorized overtime the previous
day. She indicated that appellant reported talking to her physician for 45 minutes and she was
given an appropriate form. In a July 7, 2004 statement, an employing establishment supervisor,
Connie Hanlon, stated that management noticed that appellant was struggling with route 4166.
There were four meetings to try and “find out what was going on and what we could do to help
[appellant].” Ms. Hanlon indicated that appellant was offered a different route but she declined,
stating that she needed the overtime. With respect to overtime use, Ms. Hanlon indicated that all
carriers needed an eight-hour day on their fifth day, so they would not use penalty overtime
resulting in double pay. She indicated that appellant was called into the office for being late,
although no disciplinary action was taken. Ms. Hanlon stated that appellant was never told she
had to complete the route in eight hours. She also indicated that the route was completed in eight
hours by a replacement carrier.
Another supervisor, Dennis Johnson, provided a July 23, 2004 statement discussing
appellant’s allegations. He stated that appellant was told that other employees were meeting the
hours required for her route and she was asked why she could not complete the route within eight
hours. Mr. Johnson stated that appellant had been called in for late reports and unauthorized
overtime, but there was no formal disciplinary action.
With respect to medical evidence, appellant submitted a June 7, 2004 report from
Dr. Ian Bach, a family practitioner, who reported that she was having difficulty with supervisors
“requesting what she feels are inappropriate levels of work.” Dr. Bach stated that appellant was
told the route had to be completed in 8 hours, but it took closer to 9 or 10 hours. According to
him, appellant had a May 1, 2004 meeting at which her supervisors became hostile. Dr. Bach
opined that appellant’s depression and anxiety were causally related to her employment, in
particular to the hostile environment that occurred due to her supervisor’s unreasonable
expectations.
By decision dated August 23, 2004, the Office denied the claim for compensation. The
Office found that appellant did not establish any compensable work factors.
On September 13, 2004 appellant requested an oral hearing before an Office hearing
representative. An oral hearing was held on April 19, 2005. She stated that it took nine to nine
and one half hours to complete her route. Appellant submitted a June 2, 2005 statement from a
coworker, Danny L. Goodwin, who stated that he was assigned to her route and it was a route
with lots of mail and 612 stops. He stated that he was pressured to complete his route and was

2

threatened with disciplinary action.
A witness statement from a union steward,
Dwight L. Gardner, indicated that he was with appellant during management meetings. He did
not provide further detail.
In a statement dated May 20, 2005, an employing establishment compensation specialist,
Stephen Nagy, discussed appellant’s route and the use of overtime. He indicated the standard
time for office duties was calculated at three hours and three minutes. A November 23, 2003
employing establishment document indicated that the eight-week average street time for the
route was 5 hours, 29 minutes. Mr. Nagy stated that there had been numerous discussions with
appellant regarding her apparent time wasting practices.
By decision dated June 16, 2005, the hearing representative modified the August 23,
2004 decision. He found that compensable work factors were established in that it was not
disputed that appellant’s route had 611 stops and appellant worked more than eight hours per
day. The hearing representative found that the record showed the route required 8 hours and
32 minutes to complete. No other compensable work factors were found to be substantiated by
the evidence. With respect to the medical evidence, the hearing representative found that the
record did not provide a reasoned medical opinion.
Appellant requested reconsideration and submitted the June 7, 2004 report from
Dr. Bach. By decision dated June 13, 2006, the Office determined that the request was
insufficient to warrant merit review of the claim. She again requested reconsideration and
submitted an April 17, 2006 report from Dr. Randolph Pock, a psychiatrist, who stated that
appellant convincingly described the onset of anxiety and depression to a hostile work
environment from her supervisors. He opined that her symptoms were caused by the work
environment.
By decision dated January 23, 2007, the Office reviewed the case on its merits and denied
modification.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.3
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 illness has
1

Pamela R. Rice, 38 ECAB 838 (1987).

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

3

some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.4
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors causing a condition or disability, the Office, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.5 If a claimant does implicate a factor of employment, the Office should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, the Office must base its decision on an analysis of the medical evidence.6
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.8
ANALYSIS
Appellant filed an occupational claim alleging that she sustained stress, anxiety and
depression, as well as aggravation of physical conditions, resulting from her federal employment.
The initial question is whether she has substantiated compensable work factors with respect to
her claim. Appellant’s primary allegation in this case is that she felt pressured by her supervisors
regarding the completion of her mail route. She alleged that she was intimidated by her
supervisors and was told she had to complete the route in eight hours.
The actions of the supervisors with respect to the completion of her route are
administrative in nature. As noted above, to substantiate a compensable work factor, the
evidence must demonstrate that the employing establishment erred or acted abusively in this
4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Norma L. Blank, 43 ECAB 389-90 (1992).

6

Id.

7

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

8

Margreate Lublin, 44 ECAB 945, 956 (1993).

4

administrative matter. The evidence of record does not establish error or abuse by the employing
establishment. Ms. Hanlon stated that appellant was not required to complete the route in eight
hours, but there were meetings held to try and help appellant complete the route in a more timely
fashion. No evidence was submitted that would establish these meetings or any action of the
supervisors was erroneous or abusive in this case. With respect to a May 1, 2004 meeting on use
of overtime, there was no evidence presented that the supervisors were hostile or acted abusively.
There were no formal disciplinary actions taken and there is no probative evidence of record
establishing error or abuse regarding denial of overtime or other actions of the supervisors. The
Board finds the evidence of record does not substantiate a compensable work factor regarding an
administrative action of the employing establishment.
The Office hearing representative did make a finding that compensable work factors were
substantiated in that the record established the 4166 route had 611 delivery stops and the route
inspection showed that the route would take approximately eight and one half hours to complete.
There was no finding, nor does the record support, that a compensable factor based on overwork
was substantiated. For example, the employing establishment did indicate that other employees
had completed the route in a more timely fashion and appellant herself discussed the actions of
her supervisors, not the work duties.9
Since there were compensable work factors, the medical evidence is reviewed to
determine if an injury causally related to compensable work factors has been established.
Dr. Bach referred to a hostile environment and unreasonable expectations of supervisors, which,
as noted above, have not been substantiated as compensable work factors. Dr. Pock also referred
to a hostile work environment. Neither of the physicians provided a rationalized medical opinion
on causal relationship between a diagnosed condition and compensable work factors. In the
absence of probative medical evidence, appellant did not meet her burden of proof to establish an
injury in the performance of duty.
CONCLUSION
Appellant did not meet her burden of proof to establish an injury causally related to
compensable work factors.

9

See Cyndia R. Harrill, 55 ECAB 522 (2004) (while an unusually heavy workload or unreasonable deadlines
may constitute a compensable work factor, there was no evidence to support a claim of overwork and appellant
primarily referred to the actions of her supervisors).

5

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

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6