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

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

Docket No. 12-1811
Issued: March 14, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 2, 2012 appellant filed a timely appeal of a March 8, 2012 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 schedule award issue.
ISSUE
The issue is whether appellant sustained more than four percent permanent impairment of
the left lower extremity and four percent permanent impairment of the right lower extremity, for
which he received schedule awards.
FACTUAL HISTORY
On March 4, 1997 appellant, then a 44-year-old letter carrier, sustained left upper
extremity pain while carrying a mailbag. OWCP accepted his traumatic injury claim, assigned
File No. xxxxxx690, for cervical intervertebral disc displacement and lumbar spinal stenosis.
1

5 U.S.C. § 8101 et seq.

Thereafter, appellant tripped and fell during a parcel delivery on April 13, 1999. OWCP
accepted this traumatic injury claim, assigned File No. xxxxxx417, for neck and lumbar sprains,
lumbar intervertebral disc disorder with myelopathy and cervical and lumbar intervertebral disc
displacements.2 By decisions dated August 20, 2002, January 10 and November 13, 2006, it
granted schedule awards for 25 percent permanent impairment of the left upper extremity, 10
percent permanent impairment of the right upper extremity and 3 percent permanent impairment
of the left lower extremity, respectively.
On June 18, 2009 appellant filed an additional claim for a schedule award. By decision
dated February 24, 2010, OWCP denied the claim.3
Counsel requested reconsideration on January 30, 2012 and submitted medical evidence.
In January 24, 2012 reports, Dr. Larry D. Horvath, an osteopath specializing in neurological
surgery, reviewed the medical file and found evidence of bilateral C5-C6, L4-5 and L5-S1
radiculopathy, including bilateral reduced radial and median nerve recruitment, anterior and
lateral arm paresthesia and diminished biceps and deep tendon ankle reflexes. Applying Table
15-21 (Peripheral Nerve Impairment: Upper Extremity Impairments) and Appendix A
(Combined Values Chart) of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides),4 he determined that appellant sustained 17
percent permanent impairment of the right arm. Applying Table 13-12 (Station and Gait
Disorders) and Table 16-10 (Impairment Values Calculated From Lower Extremity Impairment),
Dr. Horvath determined that appellant sustained 29 percent permanent impairment of the left leg
and 29 percent permanent impairment of the right leg.
On February 16, 2012 Dr. James W. Dyer, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, reviewed Dr. Horvath’s January 24, 2012 reports and disagreed
with his opinion. In particular, he pointed out that the ratings were not based on the standard set
forth in the American Medical Association’s supplemental publication “Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition”5 (hereinafter The Guides Newsletter). Applying
Proposed Table 1 (Spinal Nerve Impairment: Upper Extremity Impairments) and Table 2
(Spinal Nerve Impairment: Lower Extremity Impairments), of The Guides Newsletter, Dr. Dyer
calculated impairment ratings of three percent each for the left and right upper extremities and
four percent each for the left and right lower extremities, citing bilateral sensory deficits of the
C6 and L5 nerve roots, both of which merited two percent impairment. He noted that OWCP
already had granted schedule awards for 25 percent permanent impairment of the left arm, 10
percent permanent impairment of the right arm and 3 percent permanent impairment of the left
leg. Taking these prior payments into consideration, Dr. Dyer concluded that appellant sustained
four percent permanent impairment of the right leg as well as an additional one percent

2

OWCP combined these claims under File No. xxxxxx690, which is designated as the master file.

3

On July 27, 2010 an OWCP hearing representative affirmed this holding. On February 25, 2011 OWCP
reviewed the merits of the case and denied modification.
4

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

5

Christopher R. Brigham, M.D., “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition,” The
Guides Newsletter (July-August 2009).

2

permanent impairment of the left leg. He identified September 28, 2006 as the date of maximum
medical improvement.
By decisions dated March 2 and 8, 2012, OWCP vacated the February 25, 2011 decision
and granted a schedule award for an additional one percent permanent impairment of the left
lower extremity and four percent permanent impairment of the right lower extremity for the
period November 28, 2006 to March 8, 2007.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.6 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
Although the A.M.A., Guides presents methods for estimating impairment to the spine
and to the whole person,8 FECA does not authorize schedule awards for loss of use of the spine
or the body as a whole.9 Amendments to FECA, however, modified the schedule award
provision to allow for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provisions of FECA include the extremities, a
claimant may be entitled to a schedule award for permanent impairment to a limb even though
the cause of the impairment originated in the spine.10
The A.M.A., Guides does not provide a separate mechanism for rating spinal nerve
injuries as impairments of the extremities. Recognizing that FECA allows ratings for extremities
and precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal
nerve impairments.11 OWCP has adopted this approach for rating impairment to the upper or
lower extremities caused by a spinal injury.12
6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

K.H., Docket No. 09-341 (issued December 30, 2011).

8

See B.M., Docket No. 09-2231 (issued May 14, 2010); Janae J. Triplette, 54 ECAB 792 (2003).

9

D.A., Docket No. 10-2172 (issued August 3, 2011); J.Q., 59 ECAB 366 (2008). FECA expressly defines
“organ” as “a part of the body that performs a special function, and for purposes of this subchapter excludes the
brain, heart and back.” 5 U.S.C. § 8101(19). No schedule award is payable for a member, function or organ of the
body not specified under FECA or the implementing regulations. J.Q., id.
10

W.D., Docket No. 10-274 (issued September 3, 2010); Rozella L. Skinner, 37 ECAB 398 (1986).

11

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

12

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

3

ANALYSIS
OWCP accepted appellant’s traumatic injury claims for neck and lumbar sprains, cervical
and lumbar intervertebral disc displacements, lumbar spinal stenosis and lumbar intervertebral
disc disorder with myelopathy and granted schedule awards for 25 percent permanent
impairment of the left upper extremity, 10 percent permanent impairment of the right upper
extremity and 3 percent permanent impairment of the left lower extremity. Thereafter, appellant
filed another claim for a schedule award and furnished January 24, 2012 reports from
Dr. Horvath citing various tables in the A.M.A., Guides and calculating impairment ratings of 17
percent for the right arm, 29 percent for the left leg and 29 percent for the right leg. As noted,
while FECA does not authorize schedule awards for loss of use of the spine, a claimant may still
be entitled to an award for loss of use of a limb where the cause of the impairment originated in
the spine. Because the A.M.A., Guides does not provide a separate mechanism for rating spinal
nerve injuries as impairments of the extremities, OWCP has adopted the standard set forth in The
Guides Newsletter. In this case, Dr. Horvath failed to utilize the proper standard. Therefore, his
opinion on the extent of appellant’s permanent impairment was of limited probative value.13
On the other hand, the Board finds that the February 16, 2012 report of OWCP’s medical
adviser, Dr. Dyer, constitutes the weight of the medical evidence. The weight of the medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.14
Dr. Dyer reviewed Dr. Horvath’s impairment ratings and correctly pointed out that they were not
based on the standards set forth in The Guides Newsletter. He identified bilateral sensory deficits
of the C6 and L5 nerve roots, applied Proposed Table 1 and Table 2 of The Guides Newsletter,
and arrived at ratings of three percent each for the left and right upper extremities and four
percent each for the left and right lower extremities. In view of appellant’s prior schedule
awards, Dr. Dyer accordingly subtracted the percentage already paid for impairments to both
upper extremities and the left lower extremity and concluded that appellant sustained an
additional one percent permanent impairment of the left lower extremity and four percent
permanent impairment of the right lower extremity.15 Based on the totality of the medical
evidence, the Board finds that appellant did not sustain more than four percent permanent
impairment of the left lower extremity and four percent permanent impairment of the right lower
extremity.
Counsel contends on appeal that Dr. Dyer should not have used The Guides Newsletter
approach. The Board has held that The Guides Newsletter provides the appropriate method of
evaluating extremity impairments resulting from a spinal nerve injury such as radiculopathy.16
13

James Kennedy, Jr., 40 ECAB 620, 627 (1989).

14

I.R., Docket No. 09-1229 (issued February 24, 2010); James Mack, 43 ECAB 321, 329 (1991).

15

Carol A. Smart, 57 ECAB 340 (2006) (any previous impairment to a member under consideration is included in
calculating the percentage of loss except when that impairment is due to a previous work-related injury, in which
case the percentage already paid is subtracted from the total percentage of impairment). See also 5 U.S.C. § 8108;
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
16

See, e.g., P.G., Docket No. 12-30 (issued May 15, 2012).

4

Moreover, The Guides Newsletter explicitly states that its approach should be used when certain
jurisdictions such as FECA permit ratings for the extremities but preclude rating for the spine.17
Appellant submitted new evidence after issuance of the March 8, 2012 decision.
However, the Board lacks jurisdiction to review evidence for the first time on appeal.18
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
increased permanent impairment.
CONCLUSION
The Board finds that appellant did not sustain more than four percent permanent
impairment of the left lower extremity and four percent permanent impairment of the right lower
extremity.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2012 merit decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

17

The Guides Newsletter, supra note 5 at 1, 3.

18

20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, WESTSIDE STATION, )
Little Rock, AR, Employer
)
__________________________________________ )
F.C., Appellant

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

Docket No. 18-0625
Issued: November 15, 2018

Case Submitted on the Record

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

JURISDICTION
On January 30, 2018 appellant filed a timely appeal from a September 29, 2017 merit
decision and a November 24, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty; and (2) whether OWCP properly denied appellant’s request
for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 24, 2017 appellant, then a 53-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained stress due to harassment and discrimination in the
performance of her federal employment. She did not stop work.
A March 11, 2017 form report from The Family Clinic noted appellant’s diagnoses as
depression and post-traumatic stress disorder (PTSD).2 The report related that appellant was first
seen on February 3, 2017 and was advised to stay off work until April 7, 2017.
OWCP, by development letter dated May 4, 2017, notified appellant that additional factual
and medical evidence was necessary to establish her claim. It also provided a questionnaire for
her completion regarding the factual circumstances of her injury. OWCP afforded appellant 30
days to submit the necessary evidence.
In a January 15, 2017 precomplaint form, appellant alleged discrimination based on race
and physical disability, she also alleged retaliation. She claimed that her supervisor bullied and
harassed her. Appellant specifically asserted that her supervisor, J.S., tampered with her mail,
interfered with her arrival and departures, changed her work hours, threatened to controvert a work
injury claim, and did not acknowledge her physician’s work restrictions.
On January 25, 2017 appellant received a notice of a seven-day suspension for failing to
follow instructions and unacceptable conduct. Appellant’s supervisor, J.S., charged her with
refusing to follow her instructions to complete delivery of her assigned route. According to her
supervisor, appellant alleged that completing the delivery was outside her work restrictions due to
limitations on her duty hours. During the investigative interview on January 9, 2017 appellant
denied disobeying instructions and alleged supervisory harassment, bullying, and intimidation.
Appellant alleged retaliation as the notice of suspension was given after she filed an Equal
Employment Opportunity (EEO) complaint. She also alleged that her supervisor refused to meet
and discuss the situation with her and a union steward.
On March 24, 2017 appellant requested to see a union steward to inquire about filing a
grievance regarding her supervisor’s failure to provide her with forms to file a claim for workrelated stress.
In form reports from The Family Clinic dated March 31, April 7, and May 5, 2017,
appellant was diagnosed with depression and PTSD.3
OWCP received a copy of an April 26, 2017 EEO complaint wherein appellant alleged
race, age, sex, and disability discrimination. Appellant alleged that her supervisor violated her
work restrictions by not allowing her to perform office work, but following work restrictions for
white female employees. She alleged that her supervisor assigned appellant’s work to other
2

The physician’s signature is illegible.

3

The physician’s signature is illegible.

2

employees under the age of 40 while either sending her home or making her sit in the breakroom.
Appellant asserted that her supervisor asked her to leave her office and told appellant to leave the
employing establishment.
In a May 12, 2017 statement, appellant again alleged that her supervisor treated her in a
degrading manner as well as harassed, bullied, threatened, discriminated, and intimidated her. She
described an incident which allegedly occurred on December 12, 2016 when her supervisor
commented that, since she was attacked by a dog on February 4, 2016, she could not move as
quickly as other carriers, therefore, her supervisor indicated that appellant should no longer work
at the employing establishment. Appellant alleged that her supervisor would yell, scream, and talk
about her injury when she was on the work floor. She also alleged that her supervisor went into a
rage when appellant requested a union steward. Appellant alleged that on November 25, 2017 she
fell when she missed a step and her supervisor told her she was going to controvert the claim. She
alleged that, after receiving authorization to receive medical treatment, her supervisor told her that
she wanted to fire her. In addition, appellant alleged that her supervisor made her stay in the
breakroom and bullied her by telling her not to come back to work if she did not obey her
instructions.
In a May 25, 2017 report, Shannon Greenfield, Ph.D. a clinical psychologist, diagnosed
anxiety, PTSD, and significant work-related stressors. She detailed a history of psychological
stressors, which included an attack by two dogs in February 2016 while delivering mail, as well
as harassment and bullying by her supervisor. OWCP continued to receive reports from
Dr. Greenfield.
In a September 19, 2017 letter, J.S., appellant’s supervisor, denied appellant’s assertions
that she harassed appellant or made her work outside of her restrictions. She related that she
assigned work to other employees, rather than appellant, as the work was outside her work
restrictions. J.S. also denied any knowledge of an EEO complaint filed against her as complaints
were kept confidential until either trial or mediation.
By decision dated September 29, 2017, OWCP denied appellant’s claim finding that she
failed to establish a compensable factor of employment. Therefore, appellant did not establish “an
injury as defined by FECA.”
Subsequent to the denial of her claim, OWCP received a revised September 26, 2017 duty
status report (Form CA-17) from Dr. Greenfield which noted PTSD due to injury. The form also
noted that appellant was restricted to office work or driving to prevent her from encountering dogs.
On October 20, 2017 OWCP received appellant’s request for reconsideration and a
handwritten statement dated October 7, 2017 in which she reiterated her prior allegations.
By decision dated November 24, 2017, OWCP denied appellant’s request for
reconsideration. It found that the evidence she submitted in support of her reconsideration request
was irrelevant to the main issue of the present case, because her emotional condition claim had
been denied on a factual basis, i.e., her failure to submit factual evidence establishing a
compensable employment factor.

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LEGAL PRECEDENT -- ISSUE 1
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to his or her condition; and (3) rationalized medical opinion evidence establishing
that the identified compensable employment factors are causally related to his or her emotional
condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.5 There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation.6 Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the FECA.7 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force, or his or her frustration from not being permitted to work in a particular environment, or
to hold a particular position.8
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.9 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor.10
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.11
Mere perceptions of harassment or discrimination are not compensable under FECA.12 Aclaimant
must substantiate allegations of harassment or discrimination with probative and reliable

4

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

6

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

7

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

8

J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

9

D.L., 58 ECAB 217 (2006); Jerald R. Gray, 57 ECAB 611 (2006).

10

K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005).

11

K.W., id.; Robert Breeden, supra note 5.

12

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

4

evidence.13 Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred.14 A claimant must establish a factual basis
for his or her allegations of harassment or discrimination with probative and reliable evidence.15
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting his or her allegations with
probative and reliable evidence.16 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter, OWCP must base its
decision on an analysis of the medical evidence.17
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.
The Board notes that appellant did not attribute her emotional condition to the performance
of her regular or specially assigned duties as a supervisor of customer services under Lillian
Cutler.18 Rather, appellant has alleged in general and broad terms that her supervisor, J.S.,
threatened her removal, controverted an injury claim, and discriminated against her with work
assignments.
As a general rule, a claimant’s reaction to administrative or personnel matters falls outside
the scope of FECA.19 The Board has long held that disputes regarding the assignment of work,20
handling of compensation claims,21and disciplinary matters,22 are administrative functions of the
employing establishment and, absent error or abuse, are not compensable.23 Absent evidence

13

J.F., supra note 8; Robert Breeden, supra note 5.

14
G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C.
Owens, 54 ECAB 684 (2003).
15

Robert Breeden; supra note 5; Beverly R. Jones, 55 ECAB 411 (2004).

16

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

17
See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. A.K., supra note 6; Garry M. Carlo, 47
ECAB 299, 305 (1996).
18

Supra note 7.

19

Carolyn S. Philpott, 51 ECAB 175 (1999).

20

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

21

Willis E. Tomlin, Docket No. 05-0923 (issued August 11, 2005).

22

C.T., Docket No. 08-2160 (issued May 7, 2009).

23

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

5

establishing error or abuse, a claimant’s disagreement or dislike of such a managerial action is not
a compensable factor of employment.24
Appellant has submitted insufficient evidence to substantiate her allegations. She alleged
that her supervisor did not follow physician’s work restrictions, would not allow her to perform
office work, and assigned work she could have done to other employees. Mere disagreement or
dislike of a supervisory or of a managerial action will not be compensable, absent evidence of error
or abuse.25 Appellant has not provided evidence establishing that J.S. erred in the assignment of
work, made appellant work outside her restrictions, or improperly disciplined her for failing to
follow instructions regarding her assigned route. J.S. denied appellant’s allegations and explained
that she did not assign some work to appellant as it was outside her work restrictions. The Board
finds that appellant has not submitted evidence supporting her claim and J.S. provided a reasonable
explanation for her actions such that appellant has not established a compensable factor of
employment in this regard.
Appellant alleged that she was harassed, yelled at, and bullied by her supervisor, J.S. To
the extent that incidents alleged as constituting harassment or a hostile environment by a manager
are established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors.26 However, for harassment to give rise to a compensable
disability under FECA, there must be evidence that harassment did in fact occur. Mere perceptions
of harassment are not compensable under FECA.27 Appellant has not submitted any evidence such
as witness statements supporting her allegations. General allegations of harassment are
insufficient28 and in this case she has not submitted sufficient evidence to establish disparate
treatment by her supervisor.29 Although appellant alleged that her supervisor harassed her and
engaged in actions which she believed constituted harassment, she provided no corroborating
evidence to establish her allegations.30 In a September 19, 2017 letter, J.S. denied appellant’s
assertions of harassment. Appellant has not established a compensable employment factor with
regard to her allegations of harassment.

24

Donney T. Drennon-Gala, 56 EAB 460 (2006).

25

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

26

David W. Shirey, 42 ECAB 783, 795-96 (1991); supra note 16.

27

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence). See also
M.G., Docket No. 16-1453 (issued May 12, 2017) (vague or general allegations of perceived harassment, abuse, or
difficulty arising in the employment are insufficient to give rise to compensability under FECA).
28

See Paul Trotman-Hall, 45 ECAB 229 (1993) (Alternate Member Groom, concurring).

29

Jack Hopkins, Jr., supra note 27.

30
See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).

6

The Board, therefore, finds that appellant has not established an emotional condition in the
performance of duty as she has not attributed her claimed condition to a compensable employment
factors.31
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.32
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.33
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.34 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.35 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.36
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s October 7, 2017 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board
finds that, although she submitted a written statement, she did not advance a relevant legal
argument not previously considered by OWCP. Consequently, appellant is not entitled to further
31

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
32

5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).
33
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
34

Id. at § 10.607(a).

35

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

36

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

7

review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(3).
In support of her October 7, 2017 reconsideration request, appellant submitted a
September 26, 2017 Form CA-17 from her psychologist. Although new, this evidence is
insufficient to warrant reopening the record for further merit review. The September 26, 2017
Form CA-17 is neither relevant nor pertinent to the issue on reconsideration. As noted above, the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.37 OWCP denied appellant’s emotional condition claim on
a factual basis, i.e., her failure to submit factual evidence establishing a compensable employment
factor. Therefore, the submitted medical evidence is not relevant or pertinent to the basis of the
denial of her emotional condition claim. A claimant may be entitled to a merit review by
submitting relevant and pertinent new evidence, but appellant did not submit any such evidence,
and thus, she failed to satisfy the third requirement under section 10.606(b)(3).
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied further merit
review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty. The Board further finds that OWCP properly denied her
request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

37

Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 24 and September 29, 2017 are affirmed.
Issued: November 15, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
TENNESEE VALLEY AUTHORITY,
NUCLEAR POWER-DECATUR, AL,
Chattanooga, TN, Employer
__________________________________________

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

Docket No. 09-1734
Issued: March 5, 2010

Case Submitted on the Record

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

JURISDICTION
On June 17, 2009 appellant filed a timely appeal from a June 9, 2009 merit decision of
the Office of Workers’ Compensation Programs that denied his hearing loss claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish he sustained
hearing loss in the performance of duty.
FACTUAL HISTORY
On March 12, 2009 appellant, a 71-year-old retired supervisor, filed an occupational
disease claim (Form CA-2) alleging he sustained hearing loss that he attributed to exposure to
“excessive noise.” He alleged that he first became aware of his hearing loss and that it was
caused by his federal employment on February 13, 2009 after he underwent an audiogram.
Appellant alleged “work[ing] in a loud environment for many years without proper safety

devices to protect [his] hearing.” The record indicates that appellant retired from the employing
establishment on November 18, 1994.
Appellant submitted evidence documenting his employment history and unsigned and
uncertified sound survey data. He stated that he worked for the employing establishment briefly
in 1968 and then continuously from 1971 until 1994. Appellant submitted a number of unsigned
audiograms from the employing establishment dating from 1982 until 1989. He also submitted
an unsigned and uncertified audiogram dated February 13, 2009.
The Office referred appellant, together with a statement of facts, to Dr. George Godwin, a
Board-certified otolaryngologist, for a second opinion evaluation. In an April 27, 2009 report,
Dr. Godwin diagnosed bilateral neurosensory hearing loss and, by check mark, opined that this
hearing loss was not caused by noise exposure encountered at appellant’s federal employment.
He opined that the only historical hearing data appellant submitted, concerning the period 1982
through 1989, demonstrated his hearing was normal. Dr. Godwin noted that hearing data was
not available for the last five years of appellant’s federal employment. He opined that these tests
demonstrated appellant worked from 1971 to 1989 without any significant hearing loss.
Dr. Godwin opined that because appellant worked for 18 years with no significant hearing loss, it
was reasonable to expect that from 1989 to 1994, when appellant retired, appellant would not
have experienced any significant hearing loss.
By decision dated June 9, 2009, the Office denied the claim because appellant had not
demonstrated that his alleged hearing loss occurred in the performance of his federal
employment.1
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,

1

On appeal, appellant submitted additional medical evidence. The Board may not consider evidence for the first
time on appeal, which was not before the Office at the time, it issued the final decision in the case. 20 C.F.R.
§ 501.2(c). See J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction
is limited to reviewing the evidence that was before the Office at the time of its final decision).
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

G.T., id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

2

the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
ANALYSIS
It is not disputed that appellant was exposed to work-related noise in the course of his
federal employment. It is also undisputed that appellant now has a hearing loss. However,
appellant has not established that his hearing loss is causally related to his employment-related
noise exposure.
Appellant submitted results from audiograms conducted from 1982 until 1989. None of
these audiograms established that appellant had a hearing loss. Furthermore none of these
audiograms were accompanied by a physician’s statement certifying their accuracy. Thus, these
reports and audiograms from audiologists do not constitute probative medical evidence.7
Appellant also submitted a February 13, 2009 audiogram, which was unsigned and uncertified
and again did not constitute probative medical evidence.
The Office’s second opinion physician examined appellant, reviewed the medical record
and statement of accepted facts and reported the results of an April 27, 2009 audiogram.
Dr. Godwin diagnosed bilateral neurosensory hearing loss. He reported that the historical
hearing data appellant submitted, concerning the period 1982 through 1989, demonstrated his
hearing was normal. Dr. Godwin opined that these tests demonstrated appellant worked from
1971 to 1989 without any significant hearing loss. He opined that, because appellant worked for
18 years with no significant hearing loss, it was reasonable to expect that from 1989 to 1994,
until appellant retired, appellant would not have experienced any significant hearing loss. Based
on his examination of appellant and review of the entire record, Dr. Godwin concluded that it
was not established that appellant’s hearing loss was caused by employment-related noise
exposure. The Board finds that Dr. Godwin’s report constitutes the weight of the medical
evidence.
Appellant has provided no probative medical evidence in support of his position that his
hearing loss was caused by employment-related noise exposure. The Board finds that he failed
to meet his burden of proof.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained hearing loss in the performance of duty.

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

See 5 U.S.C. § 8101(2). This subsection defines the term physician. See Robert E. Cullison, 55 ECAB 570
(2004) (the Office does not have to review every uncertified audiogram, which has not been prepared in connection
with an examination by a medical specialist). See also Herman L. Henson, 40 ECAB 341 (1988) (an audiologist is
not considered a physician under the Act); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held
that medical opinion, in general, can only be given by a qualified physician).

3

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 5, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


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

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

Docket No. 15-607
Issued: May 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 27, 2015 appellant, through his attorney, filed a timely appeal from August 5
and November 7, 2014 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that her cervical,
lumbar, and bilateral shoulder conditions were causally related to factors of her employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the November 7, 2014 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant
to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On August 28, 2013 appellant, then a 37-year-old parcel post machine operator, filed an
occupational disease claim alleging that she sustained “other disorders due to repeated trauma.”
She first became aware of her condition and realized it resulted from her employment on
July 29, 2013. Appellant began to work modified duty with restrictions of sitting for half an
hour, keying zip codes, and stretching for 10 minutes in between. The employing establishment
reported that she claimed that her pain began in June 2013 but she did not notify her supervisor
until August 27, 2013 when she submitted a light-duty form.
In a handwritten statement dated August 28, 2013, appellant related that she began to
experience shoulder, neck, back, and chest pain about a month ago. She noted that she also
experienced jaw pain and swollen gums. Appellant stated that she underwent a magnetic
resonance imaging (MRI) scan examination which revealed positive results. She believed that
she sustained a work-related injury due to heavy lifting, processing mail, lifting over her
shoulders, taking out trays from the containers, and putting mail in the trays.
In a July 29, 2013 MRI scan of the lumbar spine, Dr. Mohammad I. Jilani, a Boardcertified diagnostic radiologist, who specializes in neuroradiology, did observe central L5-S1
disc herniation and L4-5 disc bulge as appellant had noted. He also noted a history of lumbar
radiculopathy.
In an August 19, 2013 MRI scan of the cervical spine, Dr. Noam S. Eshkar, a Boardcertified diagnostic radiologist who specializes in neuroradiology, related appellant’s complaints
of neck pain. He reported no vertebral body compression fracture and no cervical spinal cord
lesion. Dr. Eshkar observed a straightening of the cervical lordosis. He opined that appellant
had focal central disc herniation at C3-4 and C4-5, broad-based left paracentral disc herniation at
C6-7, and disc bulging at C5-6.
In an August 30, 2013 letter, the employing establishment controverted appellant’s claim
alleging that her claim was too vague to establish fact of injury and that the medical
documentation was insufficient to support her claim.
In a September 13, 2013 report, Dr. Rosa Matos Neno, a Board-certified internist, noted
that appellant was under her care for cervical radiculopathy, intractable neck and mid-back pain,
and herniated discs of the cervical and lumbar spine. She reported that appellant’s medical
condition occurred due to working at the employing establishment lifting heavy boxes, bags, and
parcels and “keying” every day for the past 15 years. Dr. Neno excused appellant from work for
the period September 12 to 13, 2013 and advised her not to return to work until October 2, 2013.
In a letter dated September 27, 2013, OWCP advised appellant that the evidence
submitted was insufficient to establish her claim and requested additional evidence.
In September 27 and October 8, 2013 reports, Dr. Mark A.P. Filippone, Board-certified
in physical medicine and rehabilitation, related that appellant was a clerk who was injured while
working at the employing establishment. Appellant stated that, since 2003, she experienced low
back, neck, and left shoulder pain as well as numbness and tingling into the right upper extremity

2

when she attempted to do repetitive activities with the arm. Dr. Filippone noted that she had
worked as a clerk for the employing establishment since 1994 working as a keyer on the small
parcel and bundle sorter or letter sorting machine (LSM). He reviewed some of appellant’s
medical records and noted the abnormal MRI scans of the cervical and lumbar spine.
Dr. Filippone related that she denied any history of trauma or injury other than that, which
occurred at work, but noted that she may have had a fall a year ago.
Upon examination of appellant’s back, Dr. Filippone observed that she could forward
flex at the waist with the fingertips to five inches from the floor with right low back pain and
could extend the low back to 20 degrees with increasing low back pain. He also noted pain,
guarding, and spasm in the cervical paraspinals and suboccipital musculature and pain, guarding,
and spasm in the lumbar paraspinals, more over the right than the left sciatic notch.
Dr. Filippone provided range of motion findings for the neck. Examination of the upper
extremities revealed pain on palpation over the anterior aspect of both shoulders and limitation of
terminal glenohumeral abductions bilaterally with pain and impingement in the shoulders.
Tinel’s and Phalen’s signs were positive to the wrists and tarsal tunnels bilaterally. Dr. Filippone
diagnosed cervical radiculitis, internal derangement of both shoulders, and lumbosacral
radiculitis. He recommended that appellant continue physical therapy three times weekly for the
next five weeks.
Dr. Filippone included various attending physician’s reports dated
September 27, 2013 to May 7, 2014 which indicated that she was totally disabled.
In reports dated October 8 to November 8, 2013, Dr. Filippone noted that appellant’s
medical history and review of systems were unchanged. Upon examination, he observed pain,
guarding, and spasm in the cervical paraspinals right more than left and right more so than left in
the lumbar paraspinals.
Dr. Filippone reported that central and peripheral neurologic
examinations were unchanged. He stated that appellant remained totally disabled and
recommended physical therapy.
In a decision dated November 20, 2013, OWCP denied appellant’s occupational disease
claim finding that she had not established fact of injury. It determined that she had failed to
describe the factors of employment that she believed caused her medical conditions and had
failed to submit medical evidence to demonstrate a diagnosed condition causally related to her
federal employment.
In a letter dated December 3, 2013, counsel requested a hearing, which was held on
May 22, 2014. Appellant stated that she first began working for the employing establishment in
1994 as a casual clerk. She described her duties as lifting up to 70 pounds, lifting trays weighing
up to 15 pounds, and processing and sorting mail on machines. After two years appellant began
to work as a keyer on the LSM machine. Appellant’s duties required sitting down at a computer,
typing zip codes with both hands, pitching mail case, and netting trays to be sorted. In 1998, she
became a regular clerk position working on the parcel sorter machine. Her duties involved
keying with her right hand while pushing with the left hand in order to sort mail and put it in the
bag. In 2000, appellant transferred to another processing center and worked in the wrapper stand
where she had to key and push mail. She estimated that the center moved 1,000 pieces of mail
an hour. In 2008, appellant transferred to work with military international mail which involved
bagging the mail, strapping, and lifting mail to the postcon or roller. She noted that the bags
weighed 15 to 20 pounds, but could weigh up to 70 pounds. Appellant reported that sorting mail

3

also involved repetitive lifting and twisting with her back. She noted that all her duties were
repetitive and used her arms.
Appellant stated that in 2000 she began to experience pain in her lower back and was
eventually diagnosed with a bulging disc and minimal herniation. She related that the pain
worsened and she began to experience neck, shoulder, and left jaw pain. Appellant also began to
experience headaches and vertigo. She described the medical treatment and various diagnostic
examinations she underwent. Appellant continued to work and do the same repetitive duties. In
September 2013, she noted that the pain became so severe that she told her supervisor she was
not feeling well and made a doctor’s appointment with Dr. Neno. Appellant was placed on light
duty, but the employing establishment was unable to accommodate her restrictions. She noted
that she was advised to file for workers’ compensation benefits. Appellant stated that she did not
have any other injuries or accidents to her neck, back, or shoulder. Counsel noted that it was
clear that she underwent a lot of repetitive work, including sorting mail, processing mail, and
working on sorting machinery from 1994 to 2013 and that her low back, neck, and right arm
conditions worsened over time. He contended that the various medical reports supported causal
relationship.
In November 8 and December 6, 2013 reports, Dr. Filippone noted that he reexamined
appellant for injuries that she sustained while at work for the employing establishment. He
related that she continued to complain of numbness and tingling in the upper and lower
extremities. Upon examination, Dr. Filippone observed pain, guarding, and spasm in the cervical
and lumbar paraspinals. Central and peripheral neurologic examinations were unchanged.
Dr. Filippone related that appellant’s symptoms had continued over the last 10 years since about
2003, especially when she attempted to do any repetitive activities, which were an essential part
of her job. He reviewed a report from her regarding her employment duties as a parcel post
distribution clerk and noted that her position required repetitive movements of the neck,
shoulders, upper extremities, and mid and low back. Dr. Filippone opined that “in the absence of
any prior problems with these areas they were deemed as over-use phenomenon from the postal
examiners and solely the result of appellant’s present complaints.” He stated that there was “no
medical reason other than her job for these symptoms and no other history of trauma or injury to
account for these symptoms.” Dr. Fillipone concluded that appellant’s condition was
“occupational in nature.” He noted his disagreement with the November 20, 2013 denial
decision and stated that he has provided a comprehensive medical report and medical opinion
with medical reasons as to the cause of her condition.
In a December 17, 2013 report, Dr. Neno stated that appellant had been her patient since
2000 for complaints of neck, shoulder, and back pain which had worsened over time. She
related that appellant’s studies revealed herniated discs in both the cervical and lumbar spine.
Dr. Neno stated that appellant suffered from radiculopathy due to her herniated disc disease. She
opined that appellant’s current medical condition had developed and was a direct cause of her
working at the employing establishment lifting heavy boxes and bags, parcels, and being
hunched over a computer keyboard “keying” in data daily over the past 15 to 16 years. Dr. Neno
recommended that appellant work light duty until further notice.

4

In office notes dated July 19, 2013 and January 8, 2014, Dr. Neno related appellant’s
complaints of hematuria, neck pain, right hip, gum and jaw pain, and back pain for the past two
weeks. She diagnosed cervical radiculopathy, neck pain, and backache.
In January 20 and February 24, 2014 reports, Dr. Filippone reexamined appellant and
noted that she continued to complain of neck, shoulder, and back pain. He observed pain,
guarding and spasm in the cervical, thoracic, and lumbar paraspinals. Central and peripheral
neurologic examinations were unchanged. Dr. Filippone noted that, as a clerk, appellant had to
push 1200-pound post coms and that she was in no condition to do that. He stated that she
remained totally disabled.
In a March 13, 2014 letter, counsel stated that Dr. Neno’s March 3, 2014 report supported
causal relationship between appellant’s neck, upper extremity, and low back conditions and her
work with the employing establishment.
In a March 3, 2014 report, Dr. Neno stated that on September 17, 2012 she examined
appellant for complaints of persistent right upper extremity pain radiating to her back, especially
after lying down. Appellant returned in July, August, September, October, and December 2013
again complaining of neck, low back, and shoulder pain which had worsened over time.
Dr. Neno noted that appellant had abnormal MRI scans of the cervical and lumbar spine. She
opined that appellant’s current and ongoing medical condition had developed and was a direct
cause of her working at the employing establishment lifting heavy boxes, bags, parcels, and
being hunched over a computer keyboard daily for the past 15 to 16 years.
In a March 28, 2014 report, Dr. Filippone noted that he first examined appellant on
September 27, 2013. He related that since 2003 she began to notice low back, bilateral neck, and
shoulder pain as well as numbness and tingling into the right upper extremity. Dr. Filippone
noted that appellant’s symptoms had gone on for the last 10 years and reviewed her diagnostic
reports. He stated that except for the elevated cholesterol, she had no ongoing medical illnesses
and denied any history of trauma or other workers’ compensation injuries. Upon examination,
Dr. Filippone observed pain, guarding, and spasm in the cervical paraspinals and shoulders, right
more so than left, and in the lower right lumbar paraspinals. He diagnosed disc herniations at
C3-4, C4-5, and C6-7, bulging disc at C5-6, central L5-S1 disc herniation, L4-5 disc bulge, and
internal derangement of both shoulders. Dr. Filippone stated that appellant worked as a clerk
and that this position required repetitive movements of the neck, shoulders, and upper
extremities, and mid and low back. He noted that she also had to push 1200-pound post coms.
Dr. Filippone reported that it was “well within reasonable probability that the patient’s present
complaints were solely the result of the strenuous repetitive moments required by her job at the
employing establishment, which she had been doing since 1994.” He explained that there was
no medical reason, other than her job, for these symptoms and no other history of trauma or
injury to account for these symptoms. Dr. Filippone recommended that appellant continue on
total disability.
In a May 7, 2014 report, Dr. Filippone noted that appellant’s medical history remained
unchanged. Upon examination, he observed that she could actively laterally flex the neck to 40
degrees to the right and left and to 30 degrees with pain in the contralateral cervical paraspinals.
Appellant could forward flex the neck to 25 degrees and extend to 15 degrees before

5

experiencing pain in the cervical paraspinals. Examination of the back revealed that she could
not extend beyond neutral or five degrees past neutral without experiencing increasing low back
pain, right more than left. Dr. Filippone also noted pain, guarding, and spasm in the cervical
paraspinals but more so in the lumbar paraspinals, sciatic notches, and retrochanteric areas. He
reported that appellant remained totally disabled.
In a May 27, 2014 letter, counsel stated that he was enclosing some old medical records
that were referred to at the hearing. Appellant submitted various reports from 2000 to 2005
regarding treatment for her cervical spine, lumbosacral spine, and bilateral shoulders. On May 1,
2000 Dr. Qwie T. Chew, a Board-certified diagnostic radiologist, reported a normal lumbosacral
spine upon x-ray. In a July 25, 2005 MRI scan of the cervical spine, Dr. Marina Perlov, a Boardcertified diagnostic radiologist, observed straightened lordotic curvature and stated that it was an
otherwise normal examination.
In duty status and attending physician reports dated June 13, 2014, Dr. Filippone
indicated that appellant remained totally disabled from work.
In a decision dated August 5, 2014, an OWCP hearing representative affirmed the
November 20, 2013 denial decision with modification. She found that appellant performed the
duties of a distribution clerk as described, but denied the claim finding insufficient medical
evidence to establish a diagnosed condition causally related to her employment duties.
On November 3, 2014 OWCP received appellant’s request for reconsideration. Counsel
stated that Dr. Filippone provided an amendment of his initial report with additional medical
reasons for his conclusion that appellant developed shoulder, neck, and back conditions as a
result of her duties as a clerk for the employing establishment.
In an August 15, 2014 report, Dr. Filippone stated that appellant’s medical history was
unchanged and that there was no interval or intercurrent history of trauma or injury. He clarified
his September 27, 2013 report that she did not have a fall a year ago. Dr. Filippone related that
appellant continued to complain of neck, shoulder, and low back pain despite not working and
modifying her activities of daily living. Upon examination, he observed pain, guarding, and
spasm in the cervical paraspinals bilaterally, right more than left, as well as in the lumbar
paraspinals and right sciatic notch.
Dr. Filippone requested authorization to perform
electromyography and nerve conduction studies of appellant’s upper extremities to ascertain the
nature, extent, and level of any cervical spine nerve entrapment and cervical radiculopathy. He
opined that “all of the above is workers’ compensation caused solely.” Dr. Filippone provided
attending physician and duty status reports which indicated that appellant remained totally
disabled.
By decision dated November 7, 2014, OWCP denied modification of the August 5, 2014
decision finding that the medical evidence was insufficient to establish that appellant sustained
an injury causally related to factors of her employment.

6

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that she sustained an injury in the performance of duty and that any specific
condition or disability for work for which she claims compensation is causally related to that
employment injury.4 In an occupational disease claim, appellant’s burden requires submission of
the following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
Appellant alleges that she sustained cervical, lumbar, and upper extremity conditions as a
result of her employment duties as a parcel post machine operator. OWCP accepted that she
worked for the employing establishment but denied appellant’s claim finding insufficient
medical evidence to establish that she sustained any diagnosed conditions causally related to
factors of her employment. The Board finds that the medical evidence demonstrates that
appellant sustained diagnosed cervical, lumbar, and bilateral shoulder conditions, but it fails to
establish that these conditions resulted from her employment.
Appellant submitted various reports by Dr. Filippone dated September 27, 2013 to
August 15, 2014. Dr. Filippone reviewed her history and noted that she denied any history of
trauma or injury. He related that an August 2013 MRI scan of the cervical spine revealed disc
herniation at C3-4, C4-5, and C6-7 as well as disc bulging at C5-6. A July 2013 MRI scan of the
lumbar spine demonstrated central L5-S1 disc herniation and L4-5 disc bulge. Dr. Filippone
provided findings on examination and diagnosed cervical radiculitis, internal derangement of
both shoulders, and lumbosacral radiculitis. He recommended physical therapy and stated that
appellant was totally disabled.
3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

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

7

In a December 6, 2013 report, Dr. Filippone reviewed appellant’s employment duties as a
parcel post distribution clerk and noted that her position required repetitive movements of the
neck, shoulders, upper extremities, and mid and low back. He opined that there was “no medical
reason other than her job for these symptoms and no other history of trauma of injury or injury to
account for these symptoms.” In a March 28, 2014 report, Dr. Filippone reiterated that it was
“well within reasonable probability that the patient’s present complaints were solely the result of
the strenuous repetitive moments required by appellant’s job at the employing establishment,
which she had been doing since 1994.” He explained that there was no medical reason, other
than her job, for these symptoms and no other history of trauma or injury to account for these
symptoms.
The Board finds that Dr. Filippone’s opinion on causal relationship lacks probative value
because it is vague and equivocal, and does not adequately explain the causal relationship
between appellant’s cervical, lumbar, and upper extremity conditions and her employment
duties.8 Dr. Filippone’s opinion that it was “well within reasonable probability” that appellant’s
condition resulted from her repetitive job duties is speculative in nature and of diminished
probative value.9 The Board further finds that, although his reports contain an accurate
description of appellant’s employment duties and affirmative statements of causation, they do
not contain a sufficient explanation, based on medical rationale, of how any of her duties would
have physiologically caused or contributed to her various medical conditions.10 Instead,
Dr. Filippone attributes appellant’s medical conditions to her employment based merely on the
fact that she has no other history of injury or trauma. He fails to explain how her particular
employment duties caused or contributed to her diagnosed conditions. The Board has found that
rationalized medical opinion evidence must relate specific employment factors identified by the
claimant to the claimant’s condition, with stated reasons by a physician.11 For these reasons,
Dr. Filippone’s reports are insufficient to establish appellant’s claim.
Similarly, Dr. Neno’s opinions also lack medical rationale to support her opinion of
causal relationship. In reports dated September 13, 2013 to March 3, 2014, she reviewed
appellant’s history and provided findings on examination. Dr. Neno noted that appellant
suffered from cervical radiculopathy due to her herniated disc disease, neck pain, and back ache.
She opined that appellant’s current and ongoing medical condition had developed and was a
direct cause of her working at the employing establishment lifting heavy boxes, bags, parcels,
and being hunched over a computer keyboard daily for the past 15 to 16 years. Dr. Neno,
however, did not provide any medical explanation or rationale to support her opinion. Medical
evidence that states a conclusion but does not offer any rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of

8

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

9

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

10

See M.W., Docket No. 14-1664 (issued December 5, 2014); D.B., Docket No. 14-295 (issued April 25, 2014).

11

L.F., Docket No. 10-2287 (issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000).

8

causal relationship.12 Accordingly, Dr. Neno’s reports are insufficient to establish appellant’s
claim.
The additional July 29 and August 19, 2013 diagnostic reports are likewise insufficient to
establish causal relationship. While they contain diagnoses of cervical and lumbar conditions,
they do not have any opinion on the cause of these conditions. The Board has found that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.13
On appeal, counsel alleged that Dr. Filippone and Dr. Neno’s reports constituted
prima facie factual and medical evidence to establish appellant’s occupational disease claim. As
explained above, however, the Board has found that Dr. Filippone and Dr. Neno’s reports are of
diminished probative value and fail to establish causal relationship.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.14
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship.15 Causal relationship must be established by
rationalized medical opinion evidence.16 As appellant has not submitted such rationalized
medical evidence in this case, she did not meet her burden of proof to establish her occupational
disease 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 her burden of proof to establish cervical,
lumbar, and bilateral shoulder conditions causally related to factors of her employment.

12

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

13

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

14

Joe T. Williams, 44 ECAB 518, 521 (1993).

15

Jennifer Atkerson, 55 ECAB 317 (2004).

16

Supra note 6.

9

ORDER
IT IS HEREBY ORDERED THAT the November 7 and August 5, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
U.S. MERCHANT MARINE ACADEMY,
Kings Point, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0558
Issued: October 10, 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 January 19, 2018 appellant filed a timely appeal from a November 21, 2017 merit
decision and a January 11, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.2
ISSUES
The issues are: (1) whether appellant has established that he sustained an injury in the
performance of duty as alleged; and (2) whether OWCP abused its discretion in denying

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated May 16, 2018, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for
Oral Argument, Docket No. 18-0558 (issued May 16, 2018).

appellant’s request for a hearing before an OWCP hearing representative pursuant to 5 U.S.C.
§ 8124.
FACTUAL HISTORY
On May 1, 2017 appellant, then a 59-year-old security officer, filed an occupational disease
claim (Form CA-2) alleging that exposure to toxic substances at the site of the World Trade Center
(“Ground Zero”) shortly after the September 11, 2001 terrorist attacks caused a malignant
neoplasm of the right choroid. He noted that he was first diagnosed with cancer on November 25,
2014 by Dr. Paul T. Finger, a Board-certified ophthalmologist.
In a May 18, 2017 supervisor’s report, the employing establishment noted that appellant
was separated from employment, effective August 30, 2008. OWCP paid appellant wage-loss
compensation and medical benefits on the periodic rolls under OWCP File No. xxxxxx614, which
accepted for traumatic knee contusions, cervical, and lumbar strains sustained on December 3,
2004 while arresting a suspect.
By development letter dated May 31, 2017, OWCP notified appellant of the type of
additional evidence needed to establish his claim, including factual evidence corroborating that he
was in the performance of duty while at Ground Zero, and a medical report from his attending
physician explaining how appellant’s employment activities would have caused or contributed to
the claimed condition. It afforded him 30 days in which to submit additional evidence.
In response, appellant submitted his June 14, 2017 statements in which he asserted that it
was his duty to report to Ground Zero immediately after the September 11, 2001 attacks because
he had been trained in relevant first response and law enforcement protocols. He provided an
undated employing establishment award to unspecified personnel for their actions from
September 11 to 19, 2001. Appellant also provided medical literature regarding cancer diagnoses
following exposures to various toxins at Ground Zero. He also submitted medical evidence.
In a report dated December 1, 2014, Dr. Finger noted that he had first diagnosed appellant
with a T1 right choroidal melanoma on November 25, 2014. In a June 14, 2017 report, he related
that local radiation treatment had reduced the thickness of the tumor. Dr. Finger did not address
the etiology of appellant’s condition.
The employing establishment provided several supervisory statements. In a May 17, 2017
e-mail, Acting Foreman S.F. asserted that he did not recall seeing or working with appellant on
any vessel or during operations ashore related to the September 11, 2001 attacks. In a May 19,
2017 e-mail, E.W., the officer in charge of the employing establishment’s September 11, 2001
response, explained that appellant’s mention in the staff list of the Outstanding Unit Award, and
an enclosed October 1, 2001 timeline of the employing establishment’s response activities, meant
that appellant “DID NOT travel down to ‘Ground Zero’ or to NY Harbor as part of any [employing
establishment] contingent. A separate review of the detailed personnel assignment records used
to develop the list of OUA [Outstanding Unit Award] recipients further confirms this statement.”
(Emphasis in the original.)
Assistant Director R.C. noted in a May 22, 2017 e-mail that none of his staff who
participated in September 11, 2001 operations recalled appellant being on board any employing
2

establishment vessel. “When the attacks happened [R.C.] was in a meeting with [appellant]. At
that point [appellant] returned to [his duty station] and began securing the campus.”
In letters dated June 28 and 29, 2017, the employing establishment contended that agency
documentation demonstrated that appellant performed “shoreside support” activities on and after
September 11, 2001 at the employing establishment’s Kings Point campus. Appellant never
“travelled to lower Manhattan as a first responder.”3
By decision dated August 10, 2017, OWCP denied appellant’s claim, finding that fact of
injury had not been established. It determined that the factual evidence of record demonstrated
that he did not travel to Ground Zero in the performance of duty as alleged. OWCP noted that the
inconsistencies between appellant’s assertions and employing establishment records cast serious
doubt on the validity of his claim.
On August 22, 2017 appellant requested reconsideration. He contended that the employing
establishment officials who provided statements in evidence were not in his chain of command
and had no direct knowledge of his activities. Appellant explained that his immediate supervisor,
J.J., had authorized his participation in law enforcement liaison groups and had paid for him to
attend law enforcement training.
In support of his request, appellant provided an April 6, 2016 statement from K.V., an
emergency management technician, who asserted that, on September 11, 2001, she spoke with
appellant by telephone and he advised her that “he was currently at Ground Zero.” In a
September 22, 2015 affidavit, M.M., appellant’s former partner in the New York Police
Department (NYPD), recalled that on “a few occasions” between September 15 and October 30,
2001, appellant met him at Ground Zero “while [appellant] was present in his capacity as police
chief of a federal agency. We also went to lunch on Canal Street on a few occasions.”
Supervisor E.W. responded to appellant’s statement on September 12, 2017. He asserted
that he supervised all employing establishment personnel assigned official duties at Ground Zero.
E.W. reiterated that appellant was not a part of any official waterborne or on-site support activities.
Supervisor J.J. contended in a September 6, 2017 statement that “the only personnel
authorized to be part of any of the trips to the WTC [World Trade Center] site were those
[employing establishment] staff and midshipmen placed on an official record sheet of
participation.”
In a letter dated September 13, 2017, the employing establishment contended that there
were no records which indicated that appellant participated in any official activities at or near

3
The employing establishment also provided an unsigned log of command center activities on September 11
and 12, 2001. These records do not mention appellant.

3

Ground Zero. Rather, appellant performed “dockside service” on the employing establishment’s
grounds in King’s Point.
By development letter dated September 18, 2017, OWCP requested that appellant answer
the employing establishment’s September 13, 2017 controversion of his claim. It afforded him 30
days to submit additional evidence or argument.
In response, appellant submitted a September 21, 2017 statement contending that he was
officially authorized to visit One Police Plaza following the September 11, 2001 attacks as part of
assigned intelligence gathering activities. He asserted that the employing establishment officials
who controverted his claim were not in his chain of command. Appellant argued that only his
immediate supervisor J.J, and institutional staff advisor V.M., who signed his official position
description on January 26, 2000, were competent to comment on the scope of his official duties.
Human resources specialist R.V. replied in an October 16, 2017 e-mail that appellant was
not assigned to gather or share intelligence with local police at any time after the September 11,
2001 attacks. Additionally, no employee recalled appellant “mentioning to them that he was at
Ground Zero, nor does [E.W.] remember him being assigned any task that would take him there.”
The employing establishment also explained in an October 17, 2017 letter that as supervisor E.W.
was the commanding officer in charge on September 11, 2001, it was “preposterous to believe that
[E.W.] would not have been aware of any high-level meetings with any other State or Federal
agencies or law enforcement [appellant] alleges [that] he attended while at Ground Zero.”
By development letter dated October 18, 2017, OWCP requested that appellant respond in
writing to the employing establishment’s October 17, 2017 letter controverting his claim.
Appellant was afforded 30 days to submit additional evidence or argument.
In response, appellant submitted letters dated October 23, 25, and November 10, 2017
alleging that he frequently communicated with state and federal law enforcement officials as part
of his official duties, and that he was in charge of communicating with the governor’s office to
establish a federally staffed security perimeter for the employing establishment following the
September 11, 2001 attacks. He alleged that R.V. had lied in his statements to OWCP, and that
E.W. was not present at meetings in which appellant requested and “secured shotguns for the police
department.”
In a letter dated November 10, 2017, appellant’s coworker J.C. asserted that commander
E.W. was not in his chain of command. He contended that, on an unspecified date, he and appellant
were assigned to assist in a criminal investigation on Long Island.
By decision dated November 21, 2017, OWCP denied modification of its prior decision,
finding that the additional evidence submitted failed to establish that appellant was in the
performance of duty when he visited Ground Zero following the September 11, 2011 attacks. It
found that, while M.M.’s September 22, 2015 affidavit indicated that appellant was present at or
near the World Trade Center site, it did not establish that he was there in an official capacity or

4

while on duty. OWCP further found that the employing establishment’s multiple statements cast
significant doubt on the validity of appellant’s claim.
In a letter dated and received by OWCP on November 28, 2017, appellant requested an
oral hearing or a review of the written record by OWCP’s Branch of Hearings and Review.4 He
submitted a September 25, 2001 U.S. Marshals Service special deputation appointment “valid only
while patrolling the roadways that run through the [employing establishment] or adjacent to it.”
Appellant also provided April 21, 2004 announcements of employing establishment law
enforcement training seminars for which he was the instructor, his undated statement asserting that
he responded to the World Trade Center attacks in the performance of duty, a document related to
OWCP File No. xxxxxx614, a May 16, 2016 letter from a security contractor who affirmed that
appellant attended a counter-terrorism seminar on Long Island in early 2002, a November 29, 2017
employing establishment statement confirming the September 25, 2001 special deputation, and a
December 5, 2017 letter from coworker L.S. contending that E.W. was not in his chain of
command.
By decision dated January 11, 2018, a representative of OWCP’s Branch of Hearings and
Review denied appellant’s request for an oral hearing as he had previously requested
reconsideration. After exercising her discretion, the hearing representative further denied the
request, finding that the issue could be equally well addressed through a request for reconsideration
before OWCP’s district office.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that the injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
4
On December 5, 2017 appellant also requested reconsideration. In a letter dated and received by OWCP on
December 9, 2017, he requested that OWCP subpoena J.G., an official of the employing establishment’s chief
counsel’s office.
5

Supra note 1.

6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999).

5

compensation is claimed, or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.8
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.9 The
employee’s statement, however, must be consistent with the surrounding facts and circumstances
and his or her subsequent course of action. An employee has not met his or her burden of proof to
establish the occurrence of an injury when there are such inconsistencies in the evidence as to cast
serious doubt upon the validity of the claim. Circumstances such as late notification of injury, lack
of confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise, unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that he sustained an occupational disease
in the performance of duty, as alleged.
Appellant alleged that the claimed neoplasm of the right choroid was caused by his
exposure to unspecified toxins at the World Trade Center attacks site from September 11 through
November 2011 during the performance of assigned law enforcement or first responder duties.
The Board has held that to establish that an injury occurred in the performance of duty the
employee must provide sufficient detail to establish that an occupational exposure occurred as
alleged.11 The only evidence appellant provided corroborating his presence at the attack site was
a September 22, 2015 affidavit from M.M., appellant’s former partner in the NYPD, who asserted
that on “a few occasions” between September 15 and October 30, 2001, he met appellant at
Ground Zero and then went to lunch with him. In this case, however, appellant’s assertion that his
duties required his presence at Ground Zero on or after September 11, 2001 was strongly refuted
by the employing establishment.
Several employing establishment officials provided detailed statements controverting
appellant’s account of events. E.W., the employing establishment officer in charge of the
employing establishment’s response to the September 11, 2001 attacks, explained that records and
coworker statements confirmed that appellant did not travel to Ground Zero after the attack.
Appellant had received an Outstanding Unit Award given only to personnel who performed
“shoreside support” on the premises of the employing establishment at King’s Point. E.W. noted
that as office in charge, he would have been aware if appellant had left the employing
establishment or had been assigned to do so. E.W. emphasized that appellant had not been part of
any official waterborne or attack site support. Assistant Director R.C. recalled that appellant was
8

Id.

9

E.G., Docket No. 17-1364 (issued April 19, 2018); R.T., Docket No. 08-0408 (issued December 16, 2008);
Gregory J. Reser, 57 ECAB 238, 241 (2005).
10

E.G., id.; Betty J. Smith, 54 ECAB 174 (2002).

11

E.G., supra note 9; see Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

at the employing establishment securing the premises following the September 11, 2001 attacks.
Supervisor J.J. noted that appellant was not listed in the official records of employing
establishment personnel who participated in rescue or support activities.
The employing establishment’s statements cast significant doubt on the validity of
appellant’s claim. There is no evidence from appellant’s supervisor, coworkers, or in
contemporaneous records that appellant was assigned to report to Ground Zero at any time
following the September 11, 2001 terrorist attacks. OWCP provided appellant the opportunity to
clarify this matter, but he did not provide sufficient evidence corroborating that his employment
duties required him to be present at or near the site of the World Trade Center attacks at any time.
Appellant’s response to the employing establishment’s assertions was to accuse the officials who
provided statements of lying or of being unfamiliar with his duties. Given the serious
inconsistencies in the evidence, the Board finds that appellant has not established the incident
component of fact of injury.12 Appellant has therefore failed to meet his burden of proof.13
On appeal appellant contends that police powers and a U.S. Marshal deputation had
required him to travel to the World Trade Center site immediately after the September 11, 2001
attack, and to meetings at various locations in Manhattan through November 1, 2001. The Board
notes, however, that the deputation was not conferred until September 25, 2001, and that the
remainder of the employing establishment’s statements and supporting documents do not
demonstrate that appellant was authorized to participate in any off-site activities related to the
attacks.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to hearing before an
OWCP hearing representative, states: Before review under section 8128(a) of this title, a claimant
for compensation not satisfied with a decision of the Secretary under subsection (a) of this section
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.14 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. In addition to the evidence of record,
the claimant may submit new evidence to the hearing representative.15

12

J.K., Docket No. 17-0300 (issued August 9, 2017).

13

As appellant did not establish an incident as alleged, the Board need not discuss the probative value of the medical
evidence. J.K., id.
14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

7

A claimant is entitled to a hearing or review of the written record as a matter of right only
if the request is field within the requisite 30 days as determined by postmark or other carriers’ date
marking and before the claimant has requested reconsideration (whether or not reconsideration
was granted).16 Although there is no right to a review of the written record or an oral hearing as a
matter of right if claimant had previously sought reconsideration, OWCP may, within tis
discretionary powers, grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for an oral hearing before
the Branch of Hearings and Review under 5 U.S.C. § 8124(b)(1).
Because appellant previously requested reconsideration on August 22, 2017 he was not
entitled to a hearing as a matter of right under section 8124(b)(1) of FECA.18
The Board further finds that OWCP’s hearing representative did not abuse her discretion
in denying appellant’s request for an oral hearing in her January 11, 2018 decision.19 The Board
has held that the only limitation on OWCP’s discretionary authority is reasonableness. An abuse
of discretion is generally shown through proof of manifest error, a clearly unreasonable exercise
of judgment, or actions taken which are contrary to logic and probably deduction from established
facts.20 Appellant was advised that his case could be equally well addressed by requesting
reconsideration before OWCP and submitting new evidence not previously considered, that he
sustained an injury in the performance of duty. In this case, the evidence of record does not
indicate that OWCP’s hearing representative abused her discretion in denying appellant’s request
for a hearing under these circumstances. Accordingly, the Board finds that OWCP properly denied
his request for a hearing.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty as
alleged. The Board further finds that OWCP properly denied his request for a hearing before an
OWCP hearing representative pursuant to 5 U.S.C. § 8124.

16
Id. at 10.616(a); L.S., Docket No. 18-0115 (issued May 10, 2018); S.F., Docket No. 17-0463 (issued September 8,
2017); Eddie Franklin, 51 ECAB 223 (1999); Delmont I. Thompson, 51 ECAB 155 (1999).
17

20 C.F.R. § 616(a); L.S., id., Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the
Written Record, Chapter 2.1601.2(a) (October 2011).
18

L.S., supra note 16, S.F., supra note 16; J.M., Docket No. 16-0669 (issued October 24, 2016); Marilyn F. Wilson,
52 ECAB 347 (2001).
19

L.S., supra note 16, S.F., supra note 16.

20
L.S., supra note 16. See R.G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542
(2006); Daniel J. Perea, 42 ECAB 214 (1990).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 11, 2018 and November 21, 2017 are affirmed.
Issued: October 10, 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

9