United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ukiah, CA, Employer
__________________________________________

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

Docket No. 18-0105
Issued: April 26, 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 October 13, 2017 appellant filed a timely appeal from an April 17, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from April 17, 2017, the date of OWCP’s last decision was October 14,
2017, a Saturday; consequently, the period for filing the appeal ran to the next business day, Monday,
October 16, 2017. See 20 C.F.R. § 501.3(f)(2). Since using October 17, 2017, the date the appeal was received by
the Clerk of the Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the
date of filing. The date of the U.S. Postal Service postmark is October 13, 2017, rendering the appeal timely filed.
See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $7,430.53 during the period September 28, 2015 to March 18, 2016; and, (2) whether
OWCP properly determined that appellant was at fault in the creation of the overpayment, thereby
precluding waiver of recovery of the overpayment.
On appeal appellant asserts that she was not at fault in the creation of the overpayment
because she followed instructions provided by the employing establishment and OWCP.
FACTUAL HISTORY
On June 7, 2014 appellant, then a 59-year-old part-time distribution clerk working four
hours of modified duty daily, filed a traumatic injury claim (Form CA-1) alleging that reaching up
to case mail that day caused a right shoulder injury. She stopped work that day. In an attached
statement, appellant indicated that she had previously injured her right shoulder in 1994 and after
her return to work in January 2013, had no problems with her right shoulder until the claimed
June 7, 2014 employment incident. She referenced OWCP File No. xxxxxx583. The record
indicates that, effective January 23, 2013, appellant began a four-hour daily modified position
under that File No. The instant claim was adjudicated as a new injury under File No. xxxxxx141.
The two claim files have not been administratively combined.
Under the instant claim, OWCP accepted right shoulder sprain. Appellant received
continuation of pay from June 8 to July 22, 2014. She received FECA compensation on the
supplemental disability rolls beginning July 23, 2014, and OWCP placed her on the periodic
compensation rolls effective September 21, 2014. On March 31, 2015 Dr. Eric S. Schmidt, a
Board-certified orthopedic surgeon, performed right shoulder arthroscopic repair of recurrent
subacromial impingement.
On September 28, 2015 appellant returned to modified duty for four hours daily and filed
claims for compensation, CA-7 forms, for approximately four hours daily, beginning
September 28, 2015. OWCP paid wage-loss compensation for 386.6 intermittent hours for the
period September 28, 2015 through March 18, 2016.
By letter dated April 12, 2016, OWCP requested that the employing establishment explain
why it was certifying compensation under File No. xxxxxx141 when she was receiving
compensation for loss of wage-earning capacity under File No. xxxxxx583.
On July 25, 2016 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $7,430.52 because she claimed wage loss for
periods to which she was not entitled for the period September 28, 2015 to March 18, 2016. It
explained that appellant, who was a part-time worker on the date of injury June 7, 2014, claimed
wage-loss compensation for a full-time job under this claim, File No. xxxxxx141, and also received
compensation for partial disability due to a loss of wage-earning capacity determination under File
No. xxxxxx583. The preliminary overpayment determination included calculations showing that
appellant was paid a total of $7,751.51 in FECA compensation for this period under File No.
xxxxxx141. It noted that she was entitled to 16 hours of intermittent wage loss for medical

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appointments totaling $320.98. This yielded an overpayment of compensation of $7,430.53. It
found appellant at fault because she accepted a payment that she knew or reasonably should have
known was incorrect. OWCP enclosed an overpayment action request form and an overpayment
recovery questionnaire (Form OWCP-20). Computer print-outs and an overpayment worksheet
with these calculations are found in the record.
Appellant timely requested a hearing before an OWCP hearing representative. She
disagreed that the overpayment occurred and contested the fault finding.
On January 24, 2017 OWCP additionally accepted adhesive capsulitis of the right shoulder.
During the hearing, held on March 13, 2017, OWCP’s hearing representative explained
that appellant was being compensated under the instant claim, File No. xxxxxx141, and also
received compensation for partial disability due to a loss of wage-earning capacity determination
under File No. xxxxxx583. Appellant agreed that she was overpaid, but maintained that she was
not at fault because errors were made by the employing establishment and OWCP. She indicated
that she had recently retired. Appellant thereafter submitted an overpayment recovery
questionnaire indicating total monthly income of $4,985.30 and monthly expenses of $3,996.75.
By decision dated April 17, 2017, an OWCP hearing representative finalized the
preliminary overpayment determination. She found the overpayment of compensation was created
because appellant was working part time when injured and should have been aware when she
returned to exactly the same work hours on September 28, 2015 that she was not entitled to
additional compensation. The hearing representative further found appellant at fault in the creation
of the overpayment and thus not entitled to waiver of recovery because she filed CA-7 claims for
compensation although she was not entitled to additional compensation. She noted that appellant’s
income exceeded her expenses by over $900.00 per month and set repayment at $200.00 per
month.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his or her duty.3
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$7,430.53 for the period September 18, 2015 to March 18, 2016.

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

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The record indicates that when appellant was injured on June 7, 2014, she was working
modified duty for four hours daily due to a previous injury, adjudicated by OWCP under File No.
xxxxxx583 and was receiving compensation for partial disability due to a loss of wage-earning
capacity determination under that claim. OWCP adjudicated the instant claim, File No.
xxxxxx141, as a new injury and after appellant returned to work paid wage-loss compensation
totaling 386.6 hours for the period September 28, 2015 through March 18, 2016 in the amount of
$7,751.51. Appellant also continued to receive compensation under File No. xxxxxx583 for this
period. OWCP determined that appellant was entitled to 16 hours of compensation for medical
appointments under File No. xxxxxx141, totaling $320.98 which was deducted from total
compensation of $7,751.51. The record thus establishes that an overpayment of compensation in
the amount of $7,430.52 was created because appellant received compensation under two OWCP
claims for the period September 18, 2015 to March 18, 2016.5
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”6
Section 10.433(a) of OWCP regulations provides that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must show
good faith and exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits.... A recipient who has done any of the
following will be found to be at fault in creating an overpayment: (1) Made an
incorrect statement as to a material fact which he or she knew or should have known
to be incorrect; or (2) Failed to provide information which he or she knew or should
have known to be material; or (3) Accepted a payment which he or she knew or
should have known to be incorrect. (This provision applies only to the overpaid
individual).”7
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.8

5

See R.H., Docket No. 09-1981 (issued June 11, 2010).

6

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

7

20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

8

Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

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ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she filed CA-7 claims for wage-loss compensation after she returned to work on September 28,
2015, even though she was also collecting wage-loss compensation under her prior claim resulting
from a loss of wage-earning capacity determination. As noted, after appellant returned to work on
September 28, 2015 she continued to receive wage-loss compensation under File No. xxxxxx141,
although she was properly receiving wage-loss compensation under File No. xxxxxx583, thus
creating a duplicate payment. Therefore, the evidence of record establishes that when appellant
claimed compensation she made an incorrect statement of material fact, the Board finds that
appellant was at fault in creating the overpayment and waiver of recovery of the overpayment is
precluded.9
As to appellant’s assertion on appeal that she was merely following instructions of the
employing establishment and OWCP, OWCP regulations provide that an error by a government
entity, including OWCP, which resulted in an overpayment does not relieve a claimant from
liability for repayment.10
With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.11 As appellant is no longer receiving wage-loss compensation under File
No. xxxxxx141, the Board does not have jurisdiction with respect to the recovery of the
overpayment under the Debt Collection Act.12
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$7,430.53 during the period September 28, 2015 to March 18, 2016. The Board further finds that
OWCP properly found her at fault in the creation of the overpayment and thus, she was not entitled
to waiver of recovery of the overpayment.

9

See W.A., Docket No. 14-0350 (issued October 28, 2014).

10

20 C.F.R. § 10.435(a); see J.O., Docket No. 09-264 (issued August 10, 2009).

11

Cheryl Thomas, 55 ECAB 610 (2004).

12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the April 17, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 26, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
GENERAL SERVICES ADMINISTRATION,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 09-2118
Issued: August 9, 2010

Case Submitted on the Record

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

JURISDICTION
On September 18, 2009 appellant, through his attorney, filed a timely appeal of a
May 21, 2009 merit decision of the Office of Workers’ Compensation Programs terminating his
compensation benefits. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
compensation benefits effective October 29, 2008; and (2) whether appellant met his burden of
proof to establish continuing disability on or after October 29, 2008.
FACTUAL HISTORY
On November 17, 2005 appellant, then a 47-year-old warehouse worker, injured his left
arm while lifting freight off a pallet.1 The Office accepted his claim for derangement of the left
1

In claim number xxxxxx500 appellant alleged a left shoulder injury on September 27, 2004. The Office
accepted this claim for left shoulder separation and impingement.

shoulder joint on February 6, 2006 and left ulnar neuropathy at the elbow. Appellant’s attending
physician, Dr. Mark J. Reiner, an osteopath, performed an ulnar nerve decompression and
transposition at the elbow on February 24, 2006. The Office placed appellant on the periodic
rolls on April 11, 2006. Dr. Reiner performed left shoulder arthroscopic surgery for a glenoid
labrale tear on July 26, 2006. On September 26, 2006 he advised that appellant could not yet
return to work. On October 24 through December 28, 2006 Dr. Reiner stated that appellant was
not improving adequately and recommended additional testing. He reiterated that appellant was
totally disabled.
The Office referred appellant for a second opinion evaluation on October 19, 2006.
Dr. Zohar Stark, a Board-certified orthopedic surgeon, completed a report on November 16,
2006 and found that appellant had objective findings of derangement of the left shoulder and
elbow ulnar neuropathy.2 He opined that appellant had not received proper medical treatment
and recommended additional physical therapy. Dr. Stark found that appellant could perform
light-duty work with no use of his left upper extremity.
On March 1, 2007 Dr. Reiner stated that he disagreed with Dr. Stark’s assessment of
appellant’s residual disability and found that appellant continued to have left upper extremity
symptoms. He recommended additional diagnostic studies and stated that appellant was unable
to work. Appellant underwent an electromyography (EMG) and nerve conduction study on
April 19, 2007 which demonstrated slightly delayed left ulnar sensory nerve latency and
conduction velocity indicative of left cubital tunnel syndrome. Dr. Reiner reiterated that
appellant was totally disabled.
The Office found a conflict of medical opinion between Dr. Reiner and Dr. Stark and
referred appellant to Dr. Roy Friedenthal, a Board-certified orthopedic surgeon, for an impartial
medical examination. In a report dated August 29, 2007, Dr. Friedenthal reviewed the history of
injury and medical treatment. He found that appellant’s employment-related injury had resolved
without residuals. Dr. Friedenthal noted that appellant had complaints of pain and severe
grimacing findings suggestive of symptom magnification. He stated that appellant had normal
range of motion of the left shoulder and no objective neurological deficit. There was good
rotator cuff strength and function with no upper arm atrophy. Dr. Friedenthal diagnosed a strain
of the left upper extremity and shoulder girdle and noted that appellant might have a
nonemployment-related disease of the cervical spine. He opined that appellant could return to
his regular duties insofar as alleged work injuries were concerned.
The Office proposed to terminate appellant’s compensation benefits by letter dated
September 25, 2007. He submitted a report from Dr. Reiner dated September 18, 2007 which
stated that he continued to exhibit symptoms of his accepted conditions and requested additional
testing to address possible progression or new neuropathy. Appellant’s attorney objected to the
proposed termination on the grounds that Dr. Friedenthal did not rely on the statement of
accepted facts. An October 4, 2007 EMG established left C8-T1 radiculopathy.

2

Dr. Stark advised that appellant is right hand dominant.

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The Office provided Dr. Friedenthal with a more detailed statement of accepted facts on
October 25, 2007 and requested a supplemental report. Dr. Reiner completed a report on
October 22, 2007 and noted appellant’s history of injury and reviewed his treatment of appellant.
He opined that appellant’s current condition was the result of his accepted employment injury
which resulted in injury to his left shoulder girdle, left elbow and arm. Dr. Friedenthal
responded on November 15, 2007 and reviewed the statement of accepted facts. He stated that it
was his opinion that appellant had recovered from his ulnar nerve injury. Dr. Friedenthal also
opined that his left shoulder condition was improved following surgery.
By decision dated December 5, 2007, the Office terminated appellant’s compensation
benefits and medical benefits effective that date. Appellant, through his attorney, requested an
oral hearing on December 10, 2007. He testified at the oral hearing on March 26, 2008.
Appellant also submitted a report dated March 25, 2008 from Dr. Reiner finding satisfactory
movement to the cervical spine and right shoulder, elbow, hand and wrist with tenderness in the
left shoulder. He also demonstrated paresthesias to the left arm with weakness. Dr. Reiner
opined that appellant was unable to work. By decision dated June 12, 2008, the Branch of
Hearings and Review found that the Office did not meet its burden of proof to terminate
appellant’s compensation and medical benefits. The hearing representative found that
Dr. Friedenthal’s report went beyond the scope of the conflict of medical opinion which was
limited to the extent of appellant’s disability for work. Both Dr. Reiner and Dr. Stark had
supported continuing medical residuals. The hearing representative found that Dr. Friedenthal
was not an impartial medical specialist on the issue of medical residuals. She found that
Dr. Friedenthal was a second opinion physician on the issue of whether appellant had any
medical residuals as a result of his accepted employment injury and that his report created a
second conflict with those of Dr. Reiner on that issue.
Dr. Reiner completed a report on July 31, 2008 and found weakness in appellant’s left
arm with tenderness in the shoulder as well as crepitus and clicking. He diagnosed chronic
permanent problems in the left arm and shoulder and stated that appellant could not return to his
date-of-injury position.
The record contains screen capture indicating that on June 27, 2008 the Office employed
the Physicians’ Directory System (PDS) and that the first physician selected was Dr. Larry
Rosenberg, a Board-certified orthopedic surgeon, who was bypassed because his schedule was
full until November 2008. The Office then utilized the PDS to schedule an appointment for
appellant with Dr. Gregory Maslow, a Board-certified orthopedic surgeon, on August 12, 2008.
It referred appellant and a new statement of accepted facts3 and a position description to
Dr. Maslow for an impartial medical examination. Dr. Maslow completed a report on
August 12, 2008 noting appellant’s history of injury and reviewing the medical reports. He
found full range of motion of the cervical spine, with no positive findings, but a great deal of
pain reported during physical examination. Appellant’s left upper extremity examination did not
demonstrate brachial plexitis, Tinel’s sign or tenderness. He complained of severe pain on
attempted elevation of the shoulder and limited range of motion due to pain. Dr. Maslow found
3

The statement of accepted facts lists appellant’s accepted claims and indicates that xxxxxx500, xxxxxx853 and
xxxxxx412 have been combined. The Board requested the complete record from the Office and the Office stated
that xxxxxx412 was not in fact combined with the other two upper extremity claims.

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on clinical examination no Tinel’s sign, no evidence of distal ulnar nerve dysfunction, no
intrinsic atrophy or intrinsic weakness and normal pinch grip. There was also no sensory deficit
to light touch on the hand. Dr. Maslow found a normal neurological examination of the left
upper extremity. He opined that on November 17, 2005 appellant sustained a sprain of the left
elbow and shoulder. Dr. Maslow stated that appellant exhibited excessive pain behavior and
opined that appellant did not have any objective evidence that he was permanently disabled from
his date-of-injury position. He stated that the November 17, 2005 injury did not result in current
disability at the elbow or shoulder. Dr. Maslow stated that appellant did not require additional
treatment or medication for his left elbow or shoulder. He stated, “It is my opinion that this
patient is capable of normal work in the warehouse without restriction imposed by the injury
accepted to have occurred at the shoulder on November 17, 2005.”
Dr. Reiner completed an additional note on September 9, 2008 and repeated his findings
of tenderness in the left shoulder with clicking, popping and weakness. He again stated that
appellant was unable to work with chronic permanent problems in his left shoulder and arm.
In a letter dated September 24, 2008, the Office proposed to terminate appellant’s
compensation and medical benefits on the grounds that Dr. Maslow’s report was entitled to the
weight of the medical evidence and established no continuing disability or medical residuals due
to the accepted employment injuries. Appellant’s attorney responded on October 6, 2008 and
disagreed with the proposed termination on the grounds that Dr. Maslow did not demonstrate full
understanding of the duties of appellant’s date-of-injury position and that he failed to recognized
proof of residual disability.
On October 7, 2008 Dr. Reiner found pain, soreness and weakness in appellant’s left
upper extremity. He disagreed with Dr. Maslow and stated that appellant was not able to return
to full duty. Dr. Reiner stated that appellant had tenderness and soreness in the left shoulder
girdle with crepitus and clicking as well as weakness in the shoulder girdle musculature. He
found grip strength weakness and paresthesias in the hands.
By decision dated October 29, 2008, the Office terminated appellant’s medical and wageloss benefits effective that date relying on Dr. Maslow’s report. Appellant, through his attorney,
requested an oral hearing on November 4, 2008. He submitted reports from Dr. Reiner dated
November 4, December 2 and 30, 2008 describing appellant’s persistent pain in the cervical
spine radiating into the left shoulder and arm. Dr. Reiner continued to find tenderness and
stiffness in the cervical spine and tenderness and soreness in the left shoulder with crepitus,
clicking and stiffness as well as weakness. He recommended additional physical therapy and
diagnosed chronic permanent problems to his left upper extremity. Appellant also submitted
physical therapy notes. He testified at the oral hearing on March 18, 2009 and stated that he
experienced pain shooting down his left elbow into his left hand. Appellant asserted that he was
unable to perform his date-of-injury position due to the heavy lifting required. His attorney
listed his perceived defects in Dr. Maslow’s report.
By decision dated May 21, 2009, the hearing representative affirmed the Office’s
termination decision based on Dr. Maslow’s report. He found that Dr. Maslow was properly
selected in accordance with the PDS and that his report was based on a complete and accurate
factual and medical background and that the report reflected a thorough examination and

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contained rationalized medical opinion that appellant had recovered from his work-related
injuries.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.4
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.5 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability.6 To
terminate authorization for medical treatment, the Office must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.7
Section 8123(a) of the Federal Employees’ Compensation Act,8 provides, “If there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary shall appoint a third physician who shall make an
examination.”
In situations were there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9
ANALYSIS -- ISSUE 1
The Board finds that there was a conflict of medical opinion evidence between
Dr. Reiner, an osteopath and Dr. Stark, a Board-certified orthopedic surgeon, regarding the
extent of appellant’s disability for work. Dr. Reiner found that appellant was totally disabled and
Dr. Stark opined that appellant could perform light-duty work with restrictions due to his
accepted left upper extremity conditions of derangement of the left shoulder joint and ulnar
neuropathy at the elbow. The Office properly referred appellant to Dr. Friedenthal, a Boardcertified orthopedic surgeon, to resolve this conflict. Dr. Friedenthal completed a report on
August 29, 2007 which included appellant’s history of injury and a detailed physical
examination. He opined that appellant could return to his regular work duties. Dr. Friedenthal
also found that appellant’s employment-injuries had resolved without residuals. The Board notes
that, as found by the hearing representative, a second conflict was created between Drs. Reiner
4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Id.

6

Furman G. Peake, 41 ECAB 361, 364 (1990).

7

Id.

8

5 U.S.C. §§ 8101-8193, 8123(a).

9

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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and Friedenthal on the issue of appellant’s continuing medical residuals. Due to this second
conflict, the Office referred appellant to Dr. Maslow, a Board-certified orthopedic surgeon, for
an impartial medical examination.
In his August 12, 2008 report, Dr. Maslow provided a detailed report reviewing the
statement of accepted facts and appellant’s position description. Dr. Maslow noted the medical
history and listed relevant medical reports. He undertook a physical examination of appellant’s
cervical spine and upper extremities. Dr. Maslow noted that appellant reported many pain
complaints during the examination. He did not make any objective findings supporting
appellant’s continuing disability or medical residuals. Dr. Maslow reported that his left shoulder
was stable without atrophy, spasm or droop. He found that appellant’s elbow did not exhibit
Tinel’s sign, ulnar nerve dysfunction, atrophy or weakness. Dr. Maslow stated that appellant had
normal pinch grip and no sensory deficit in the left hand. He concluded that appellant’s left
upper extremity was neurologically normal. Dr. Maslow opined that there were no objective
physical findings to support appellant’s complaints of pain and that he could return to his dateof-injury position. He stated that appellant did not require additional medical treatment or
medication due to his accepted conditions.
The Board finds that Dr. Maslow’s report constitutes the weight of the medical opinion
evidence and is sufficiently detailed and rationalized to meet the Office’s burden of proof to
terminate appellant’s compensation and medical benefits. This report was based on the June 25,
2008 statement of accepted facts and position description provided by the Office. The report
included a review of the medical treatment as well as an extensive and detailed physical
examination. Dr. Maslow recorded no objective signs of disability or medical residuals in the
left upper extremity. Based on the normal examination, he opined that appellant had no need for
additional treatment or for medical restrictions preventing him from returning to his regular-duty
work. As Dr. Maslow was properly selected to serve as the impartial medical examiner as a
result of a conflict of medical opinion evidence and as his report was based on a proper history
and was detailed and well reasoned, the Board finds that the Office properly terminated
appellant’s medical and wage-loss benefits effective October 29, 2008.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish that he had disability causally related to his accepted
employment injury.10 To establish a causal relationship between the condition, as well as any
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual background, supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence, which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
10

George Servetas, 43 ECAB 424, 430 (1992).

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by the claimant. The weight of 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.11
ANALYSIS -- ISSUE 2
Following the Office’s October 29, 2008 decision terminating appellant’s compensation
benefits, he submitted additional reports from Dr. Reiner addressing his continuing disability for
work and his ongoing work-related conditions. On November 4, December 2 and 30, 2008
Dr. Reiner found that appellant had pain in the cervical spine radiating to the left shoulder and
arm. He also found tenderness, soreness and weakness in the left shoulder with crepitus, clicking
and stiffness. Dr. Reiner prescribed medication and recommended additional physical therapy.
Dr. Reiner did not provide the results of any specific physical testing in support of
findings of continuing residuals and disability. He did not provide a detailed diagnosis of
appellant’s ongoing condition, instead stating that appellant had “chronic permanent problems to
his left upper extremity.” As Dr. Reiner did not provide any specific physical findings as a result
of diagnostic or clinical examination, he has not established appellant’s continuing disability or
medical residuals. Dr. Reiner did not provide any medical reasoning explaining why or how
appellant’s current complaints were related to his accepted employment injuries. Furthermore,
as Dr. Reiner was on one side of the conflict that Dr. Maslow resolved, the additional report from
Dr. Reiner is insufficient to overcome the weight accorded Dr. Maslow’s report as the impartial
medical specialist or to create a new conflict with it.12
On appeal appellant’s attorney alleged that the Office failed to meet its burden of proof to
terminate appellant’s compensation benefits as Dr. Maslow’s report was not sufficiently detailed
and rationalized to constitute the weight of the evidence. He alleged this report did not include a
proper factual background, did not contain medical rationale and did not meet the Office’s
burden of proof to terminate appellant’s compensation benefits and that a supplemental report
was required.13 As noted previously, the Board found that Dr. Maslow’s report was based on the
statement of accepted facts and appellant’s position description. It included detailed physical
findings which were all negative. The lack of objective findings in support of appellant’s
continuing left upper extremity conditions, provides strong medical reasoning for the conclusion
that appellant’s conditions had resolved with no medical residuals or physical limitations for
work. For these reasons, the Board has found that Dr. Maslow’s report represents the weight of
the medical opinion evidence.

11

James Mack, 43 ECAB 321 (1991).

12

Dorothy Sidwell, 41 ECAB 857, 874 (1990).

13

While appellant’s attorney discussed the PDS in his brief to the Board, he did not present any argument
addressing the usage of this system in the selection of Dr. Maslow. The hearing representative addressed this aspect
of appellant’s claim in his May 21, 2009 decision and the record did not suggest any error in Dr. Maslow’s selection
as the impartial medical specialist.

7

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective October 29, 2008. The Board further finds that
appellant has not established any ongoing condition or disability for work after October 29, 2008
as a result of his accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 9, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 09-1922
Issued: September 3, 2010

Case Submitted on the Record

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

JURISDICTION
On August 5, 2009 appellant filed a timely appeal from a June 11, 2009 merit decision of
the Office of Workers’ Compensation Programs. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was entitled to compensation for partial disability
commencing January 26, 2009 due to the accepted August 17, 1999 traumatic injury.
FACTUAL HISTORY
Appellant, then a 36-year-old accounting technician, injured her right knee on August 17,
1999 when she struck her knee against a desk. She filed a claim for benefits on August 19, 1999
which the Office accepted for right knee contusion and right knee meniscus tear. The Office
subsequently accepted the conditions of right hip bursitis and right hip enthesopathy.

Appellant returned to work following the August 17, 1999 work injury until July 12, 2000,
when she underwent right knee surgery. She returned to full duty on September 11, 2000.
Appellant subsequently left her date-of-injury position with the Department of Defense and began
working for the National Park Service.1 Effective January 6, 2008 appellant was working as a GS12, step 1 contract specialist.
In a January 26, 2009 report, Dr. Michael Hebrard, a specialist in physical medicine and
rehabilitation and appellant’s treating physician, stated that appellant had complaints of back and
right leg pain with numbness and tingling of the toe. He related that she had fewer spasms around
the hip and back area, but still had some achiness past the right leg and knee with standing and
walking. Dr. Hebrard reduced her work hours to four hours per day as of January 27, 2009
secondary to a flare-up of her back and hip dysfunction.
In order to determine appellant’s current condition and whether the prescribed reduction in
work hours; i.e., her alleged partial disability, was causally related to an accepted condition, the
Office referred her to Dr. Ramon L. Jimenez, Board-certified in orthopedic surgery, for a second
opinion examination. In a March 13, 2009 report, based on his March 6, 2009 examination,
Dr. Jimenez stated that appellant continued to have problems related to the right greater
trochanteric bursitis; i.e., right hip condition and that her hip condition had not been adequately
treated since the 1999 work injury.2 In a March 6, 2009 work-capacity evaluation, he limited
appellant to working a six-hour day with restrictions.
In an April 1, 2009 supplemental report, Dr. Jiminez reiterated that due to appellant’s
work-related condition of right hip enthesopathy or right trochanteric bursitis, she was limited to
working six hours a day with restrictions.
In a Form CA-7 dated May 8, 2009, appellant requested compensation for wage loss for
February 24 to April 30, 2009. She also submitted a Form CA-7a time analysis sheet claiming
intermittent time loss due to medical appointments for the period February 27 through
April 30, 2009.
By telephone call dated May 21, 2009, appellant’s current employing establishment, the
Department of the Interior, informed the Office that she was on leave without pay status from
February 24 to 26, 2009 and had been placed on paid administrative leave from February 27
through April 11, 2009.

1

It is unclear from the record when appellant began working for the Department of Defense. An August 17, 2007
Office memorandum states that appellant was still working for the National Park Service at that time. A statement
of accepted facts dated December 29, 2008 indicates that appellant was working for the Department of Defense as of
that date.
2

Dr. Jiminez stated that it was his understanding, based on the Office’s referral letter and statement of accepted
facts, that he was evaluating appellant to determine the nature of her claimant’s condition regarding the right knee
and right hip and that a lumbar spine condition had not been accepted.

2

By letter dated May 26, 2009, the Office denied appellant compensation for wage loss for
partial disability for February 24 to April 30, 2009. It stated that she had been paid for eight
hours of wage loss for February 24 through 27, 2009. The Office rejected her claim for
reimbursement for leave without pay for the period March 2 through April 3, 2009 because her
most recent employer, Department of the Interior, had advised the Office that she had been on
paid administrative leave for the period February 27 to April 11, 2009.3 It approved
compensation for wage loss in the amount of $386.23 for intermittent time loss from April 13
through 30, 2009 based on the reduced six hours per day schedule prescribed by her treating
physician. In addition, the Office noted that her employment with the National Park Service was
terminated effective April 12, 2009 for cause.
In a Form CA-7 dated May 29, 2009, appellant requested compensation for wage loss for
May 1 to 29, 2009.
By decision dated June 11, 2009, the Office found that as of January 26, 2009 appellant
had the capacity to work as a contract specialist for no more than six hours per day with
restrictions due to an increase in her work-related hip symptoms.
The Office determined appellant’s entitlement to partial disability compensation by
relying on section 8106(a), which states that a claimant will be paid monthly partial disability
compensation equal to 66 and 2/3 percent of the difference between her monthly pay and her
monthly wage-earning capacity after the beginning of the partial disability and the principles set
forth in Shadrick, which outlines the formula for determining loss of wage-earning capacity
based on actual earnings.4 Relying on Shadrick, the Office calculated appellant’s wage-earning
capacity in terms of percentage by dividing her actual earnings by the current or updated, pay
rate for the position she held at the time of her August 1999 work injury. It then multiplied the
pay rate for compensation purposes, defined in 20 C.F.R. § 10.5(a) as the pay rate at the time of
injury, the time disability begins or the time disability recurs, whichever is greater, by the
percentage of wage-earning capacity. The Office then subtracted the resulting dollar amount
from the pay rate for compensation purposes to obtain her loss of wage-earning capacity.5
The Office stated that, at the time of her August 17, 1999 work injury, appellant was a
level GS-6, step 8 accounting technician with the Department of Defense. It noted that under the
2009 U.S. Office of Personnel Management Salary Table, the current salary for a GS-6, step 8
was $49,915 per year, which entailed a weekly pay rate of $959.90.6 The Office then stated that

3

According to the National Park Service, appellant was paid administrative leave for the periods February 9
to 20, 2009 and February 27 to April 11, 2009.
4

Albert C. Shadrick, 5 ECAB 376 (1953); See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.2 (December 1993).
5

See C.W., Docket No. 07-1357 (issued April 10, 2007).

6

See www.opm.gov/oca/09tables/pdf/SF.pdf

3

a GS-12, step 1 contract specialist with the National Park Service had a salary of $79,781 or
$1,534.25 per week, effective January 26, 2009;7 her current weekly pay rate as a contract
specialist, based on 6 hours per day (30 hours per week), is $1,146.90. It calculated appellant’s
loss of wage-earning capacity by dividing her actual weekly earning capacity as a contract
specialist of $1,146.90 by the pay rate for a GS-6, step 8 accounting technician of $959.90,
which yielded a wage-earning capacity of 119 percent. The Office, therefore, found, based on
these calculations, that since appellant’s current earnings as a GS-12, step 1 contract specialist
constituted more than 100 percent of the current earnings of a GS-6, step 8 accounting
technician, the position she held as of her August 17, 1999 work injury, she sustained no loss of
earnings causally related to her work injury. It further found that appellant was not entitled to
compensation after April 12, 2009 when she was terminated for cause.
LEGAL PRECEDENT
Section 8102(a) of the Federal Employees’ Compensation Act8 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty. Section
8106(a) provides in pertinent part as follows:
“If the disability is partial, the United States shall pay the employee during the
disability monthly monetary compensation equal to 66 2/3 percent of the
difference between [her] monthly pay and [her] monthly wage-earning capacity
after the beginning of the partial disability, which is known as [her] basic
compensation for partial disability”.9
As used in the Act, the term disability means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.10 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in her employment, she is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.11
The formula for determining wage-earning capacity, developed in the case of Shadrick,
has been codified in the Office’s regulations.12 Under the Shadrick formula, the Office first
calculates an employee’s wage-earning capacity in terms of percentage by dividing the
employee’s actual earnings by the current or updated, pay rate for the position held at the time of
7

Id.

8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8106(a).

10

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB
38 (1948); 20 C.F.R. § 10.5(f).
11

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

12

Federal (FECA) Procedure Manual, supra note 4. For the formula itself, see id., Computing Compensation,
Chapter 2.901.15.c (October 2009).

4

injury. The employee’s wage-earning capacity in dollars is computed by first multiplying the
pay rate for compensation purposes, defined in 20 C.F.R. § 10.5(a) as the pay rate at the time of
injury, the time disability begins or the time disability recurs, whichever is greater, by the
percentage of wage-earning capacity. The resulting dollar amount is then subtracted from the
pay rate for compensation purposes to obtain loss of wage-earning capacity.13
ANALYSIS
The Office accepted appellant’s claim for right knee contusion, right knee meniscus tear,
right hip bursitis and right hip enthesopathy. It accepted that appellant could only work six hours
per day as a contract specialist as of January 26, 2009 due to her work-related hip conditions, based
on the opinion of Dr. Jiminez. Appellant requested compensation for partial disability beginning
January 26, 2009.
The Office calculated whether appellant was entitled to partial disability compensation as
of January 26, 2009 using the correct information. It determined the current weekly earnings in
her date-of-injury position were $959.90 by dividing the updated yearly salary of $49,915 by 52
weeks. The Office found that the current weekly salary of a contract specialist, appellant’s most
recent job, had an annual salary of $79,781.00 or a weekly pay rate of $1,534.25 as of
January 26, 2009. This weekly pay rate equaled $1,146.90 when prorated to six hours per day or
30 hours per week. The Office divided her actual weekly earning capacity of $1,146.90 by her
current date-of-injury pay rate of $959.90, which yielded a wage-earning capacity of 119
percent. Based on these calculations, the Office properly applied the principles set forth in the
Shadrick14 decision to determine that appellant was not entitled to partial disability
compensation.
The Office properly found that appellant was not partially disabled as a result of her
August 17, 1999 employment injury, as it followed established procedures for determining
appellant’s employment-related loss of wage-earning capacity at zero. The Board, therefore,
affirms the June 11, 2009 Office decision denying compensation for wage loss based on partial
disability beginning January 26, 2009.
CONCLUSION
The Board finds that appellant was not entitled to partial disability benefits commencing
January 26, 2009 due to the accepted August 17, 1999 injury.

13

Albert C. Shadrick, supra note 4; 20 C.F.R. § 10.403(e).

14

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the June 11, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, Springfield, MO, Employer
__________________________________________

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

Docket No. 10-738
Issued: December 1, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant, through his representative, filed a timely appeal from the
December 29, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied his traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant sustained a low back injury in the performance of duty on
May 15, 2009.
FACTUAL HISTORY
On May 19, 2009 appellant, then a 44-year-old lead transportation security officer
(screener), filed a claim for compensation alleging that he injured his low back in the
performance of duty on May 15, 2009: “Walking in the checkpoint when his back went out and
his legs buckled. He couldn’t walk. He was leaning against a wall in extreme pain in his lower

back and an uncontrollable sweat.”1 A witness described what happened: “[Appellant] took a
step forward and legs gave out. He grabbed a hold of the X-ray machine to keep from falling. I
asked if he was OK and he seemed to be in too much pain to answer. He let go and tried to take
off walking and started to fall again and caught the wall.” Appellant stopped work on May 15,
2009 and sought medical attention.
An emergency medical services report on May 15, 2009 noted the following: “Arrived at
airport 0330 AM in pain, progressively got worse, until patient could barely walk.” It was noted
that appellant reported pain radiating into his right leg. “Began last Thursday and has increased
until today.”2 The report noted a right herniated nucleus pulposus in 2002.
A treatment note from March 1, 2004 gave a diagnosis of low back pain and right lumbar
radiculopathy: “Pain occurred 2/28/04 while getting up from a chair after break. Had been
lifting luggage onto a table as usual but no pain while lifting. History of previous bouts of low
back pain but this is worse.” Appellant reported a flare-up on September 1, 2004 with pain to his
right knee. He was diagnosed with spinal stenosis. On February 8, 2008 appellant presented
with a history of waking up with severe low back pain the day before with radiation into the right
leg. An August 17, 2008 magnetic resonance imaging (MRI) scan showed neural foraminal
stenosis bilaterally at L5-S1. On April 21, 2008 appellant reported more back pain with
increased outside work. He was diagnosed on May 1, 2008 with low back pain and acute
exacerbation.
On May 8, 2009 appellant presented with the following history: “Patient states he had
cleaned the windows of his car yesterday causing him to contort in different ways. About 5 P.M.
he started to have pain. He did not sleep much last night. The pain goes to both knees (posterior
right and anterior/posterior left).” Appellant was diagnosed with acute lumbar strain.
A magnetic resonance imaging (MRI) scan obtained on May 15, 2009 showed a
moderate-sized left paracentral disc protrusion at L5-S1 thought to be compressing the left S1
nerve root. “This also extends somewhat laterally into the left-sided neural foramina and could
potentially [affect] the left L5 nerve root. This clinical significance of these findings [is]
questionable given clinical history reports right-sided leg pain.” The MRI scan also showed a
mild disc bulge at L4-5 with mild facet arthropathy at L4-5 and L5-S1.
On May 18, 2009 appellant was diagnosed with lumbar disc disease and right lumbar
radiculitis. On June 23, 2009 he was diagnosed with postlaminectomy syndrome, lumbar region;
lumbar radiculopathy and herniated lumbar disc.
On June 25, 2009 Dr. Wade M. Ceola, a Board-certified neurosurgeon, reported the
following history of injury: “His work injury, as noted, was while working on May 15[, 2009]

1

It appears that a supervisor filed the claim for him.

2

May 15, 2009 was a Friday. “Last Thursday” would have been May 7, 2009. The emergency medical services
report noted the date of onset as May 7, 2009.

2

and he bent over to put tubs in a pile, felt a popping sensation and had pain beginning shortly
after that.” He offered the following medical explanation for appellant’s ruptured disc:
“[Appellant] was bending and lifting a large stack of tubs, particularly bending
over and reaching. This is what puts the most stress on a disc and certainly may
have contributed to a disc rupture. I have nothing by patient’s history as to
whether he has had previous back injury or back symptoms previously. Based on
his history of no previous injuries to his back I see no other reason for this disc
rupture. Again, the history comes from the patient. I have no other supporting
documentation as to whether he has seen other people in the past.
“At this stage he does have disc ruptured causing his limitations at work and
lifting boxes at work may certainly have triggered the disc rupture. However, I
have no previous films. I can[no]t age the disc rupture, but the patient notes this
is the first time he has sought treatment for it.”
On July 12, 2009 appellant informed the Office that on May 15, 2009 he was monitoring
operations on the checkpoint and picked up a stack of about 16 empty divesture bins and bent
over to put them on the cart to return them to the front of the lane. “As I bent over I felt an
extreme amount of pain in my back so I dropped the bins on the cart and slowly stood up. After
I felt I could move I started to walk up towards the x-ray and realized that I most likely would
not make it. I turned around and tried to make it to the chairs on the checkpoint and when I took
a step with my right leg it buckled and felt like there was no leg to stand on.” Appellant
explained that a supervisor filled out his accident report, “and that is why the statements are
different.”
On July 27, 2009 the Office denied appellant’s claim for compensation. It found that the
medical evidence did not establish that the diagnosed medical condition resulted from the
established work-related events. The Office found that Dr. Ceola based his opinion on an
incomplete and inaccurate factual and medical background, as the record documented a history
of low back and leg pain dating to 2004, and as the emergency medical services report listed a
disc condition in 2002.
During a November 13, 2009 telephonic hearing before an Office hearing representative,
appellant testified that he injured his back in March 2004 while getting up from a chair. He did
not file a claim for the injury, which “flares up usually about once a year.” Appellant also
injured his back in August 2006 while pulling a pilot’s bag out of the x-ray machine. He stated
that in early May 2009 he was packing up equipment from the old airport: file cabinets, boxes of
supplies, taking down signs, moving furniture such as bookshelves and podiums. It was after his
days off – May 6 and 7 – that his back started to bother him. Appellant did not know why it
started hurting: “That’s the way my back has always been, you know. Honestly, I don’t know.”
On May 15, 2009 appellant noticed that it was hard walking up the stairs from the
parking lot that morning. He described how, later on, he picked up some tubs -- the kind
passengers put their belongings in to send them through the x-ray machine -- and when he bent
over to put them on the return cart to take them to the front of the line, he felt an awful hot pain

3

in his back. “So I dropped the tubs and then slowly stood up, leaning on the cart, and I thought,
wow, that hurt.”
Appellant testified that he never had a laminectomy or other low back operation. He
explained that he did not have a disc condition diagnosed in 2002. Appellant believed that the
doctor who recorded that misunderstood what he intended. Dr. Ceola had asked him if he had
any previous back problems or surgeries, and appellant held up his left hand -- which had an
amputated index finger and thumb -- and answered in the affirmative, in 2002, but he meant only
to convey that he had his fingers amputated in 2002.
On December 29, 2009 the Office hearing representative affirmed the denied of
appellant’s claim. She found that no medical report adequately addressed appellant’s full history
of medical care for back symptomatology or his treatment immediately preceding the claimed
work injury on May 15, 2009. The Office hearing representative noted, as well, that none of the
most contemporaneous reports mentioned lifting tubs at work. Dr. Ceola, the only physician
who supported some level of work-relatedness, hedged his opinion with the caveat that he might
not have the full history or record.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.3 An
employee seeking benefits under the Act has the burden of proof to establish the essential
elements of his claim. When an employee claims that he sustained an injury in the performance
of duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. He must also
establish that such event, incident or exposure caused an injury.4
The mere fact that a condition manifests itself or worsens during a period of federal
employment raises no inference of causal relationship between the two.5 Causal relationship is a
medical issue,6 and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion of the physician must be based on a complete factual and medical
background of the claimant,7 must be one of reasonable medical certainty,8 and must be

3

5 U.S.C. § 8102(a).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Steven R. Piper, 39 ECAB 312 (1987).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

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supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established incident or factor of employment.9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case has
been established, such circumstances as late notification of injury, lack of confirmation of injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on a
claimant’s statements. The employee has not met this burden when there are such inconsistencies
in the evidence as to cast serious doubt on the validity of the claim.10
Medical conclusions unsupported by rationale are of little probative value.11 Medical
conclusions based on inaccurate or incomplete histories are also of little probative value.12
ANALYSIS
There remains a substantial question how the incident occurred on May 15, 2009.
Appellant did not tell the emergency medical service providers that he injured his low back after
picking up a stack of tubs and bending over to set them down. If he did, it is not reflected in
their records. Appellant told them only that he came into work that morning with low back pain,
which progressively worsened until he could barely walk. The evidence contemporaneous to the
claim does not implicate any particular incident at work.
This is consistent with the account given on appellant’s claim form. Though he
explained that a supervisor filled out the form for him, it is reasonable to expect that, if appellant
had informed his supervisor that he hurt his low back moving a stack of divesture tubs, if he had
told his supervisor that he felt a “popping” in his back when he tried to set the tubs down, such a
description of injury would have made its way into the supervisor’s report.
Appellant did tell his emergency medical service providers that the problem with his back
“began last Thursday,” which was May 7, 2009, a nonworkday. A May 8, 2009 treatment note
shows that appellant cleaned the windows of his car on May 7, 2009, “causing him to contort in
different ways.” He started to have pain about 5 p.m. and did not sleep much that night.
Appellant sought medical attention the next day, reported pain radiating into both knees and was
diagnosed with acute lumbar strain.

9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984). See also George W.
Glavis, 5 ECAB 363 (1953).
11

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

12

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

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The record also shows that appellant had a significant history of low back injury. In
March 2004 he injured his back while getting up from a chair, which caused flare ups about once
a year. In August 2006 appellant injured his back while pulling a pilot’s bag out of the x-ray
machine. Further, in early May 2009 he packed file cabinets and boxes of supplies, took down
signs and moved furniture. Though appellant testified to these incidents, he did not address
washing the windows of his car on his day off. He told the Office hearing officer that it was
after his days off -- May 6 and 7 -- that his back started to bother him. Appellant testified that he
did not know why it started hurting: “That’s the way my back has always been, you know.
Honestly, I don’t know,” but the May 8, 2009 treatment note implicated an off-duty injury.
The Board finds that there are such inconsistencies in the evidence as to cast serious doubt
on the validity of appellant’s claim. It was not until June 25, 2009, nearly a month and a half
after the alleged injury, that the medical evidence first mentioned the tubs. Dr. Ceola stated that
appellant bent over to put tubs in a pile, felt a popping sensation and had pain shortly after that.
This history is not reflected in the record contemporaneous to the May 15, 2009 incident.
Moreover, appellant did not tell Dr. Ceola about his prior history of back problems.
Without that history, Dr. Ceola related appellant’s ruptured disc to what happened at work on
May 15, 2009; he could see no other reason for it. From what appellant told him, that was “the
first time he has sought treatment for it.” Because appellant did not give Dr. Ceola a proper
history, the Board finds that Dr. Ceola’s opinion on causal relationship carries little if any
probative value. It does not support appellant’s claim for compensation.
Appellant has not met his burden of proof to establish fact of injury. The Board will
therefore affirm the Office’s December 29, 2009 decision affirming the denial of his traumatic
injury claim.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a low back injury in the performance of duty on May 15, 2009. There remains a
substantial question what happened that day, and the medical opinion evidence is insufficient to
establish the critical element of causal relationship.

6

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2010
Washington, DC

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

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

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

7


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

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

Docket No. 18-0452
Issued: July 3, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 2, 2018 appellant filed a timely appeal from a December 14, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
causally related to the accepted October 21, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its December 14, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On October 24, 2017 appellant, then a 56-year-old general expeditor, filed a traumatic
injury claim (Form CA-1) alleging that on October 21, 2017 she sustained a left knee injury at
work. She indicated that, when she was pushing a mail cart over a divet in the floor, she stepped
into the divet, causing her left knee “to go out.” Appellant reported that “her left knee was swollen
and she was unable to bend it all the way.” She stopped work on October 27, 2017 and claimed
entitlement to continuation of pay.
In an attached October 24, 2017 statement, appellant provided further details regarding her
claimed October 21, 2017 employment injury. She noted that she twisted her left knee and caught
herself with her right foot when she stepped into the divet, which was about two inches deep with
a footprint of about nine by nine inches. Appellant described her left knee symptoms after her
claimed October 21, 2017 employment injury, including pain and swelling. She indicated that,
several days later, after she walked up stairs at work on October 23, 2017, her left knee “gave out
again.”
In an October 25, 2017 statement, appellant’s immediate supervisor advised that the
employing establishment was controverting appellant’s traumatic injury claim. She indicated that
she investigated the area where appellant alleged that the October 21, 2017 injury occurred and
expressed her belief that her injury was not the result of her “stepping in/on the uneven floor.”
In an October 24, 2017 report, Sherrie Fernandes, an attending physician assistant,
indicated that appellant reported that she twisted her left knee while pushing a cart at work on
October 21, 2017.3 Ms. Fernandes detailed the findings upon physical examination of appellant’s
left knee, noting mild tenderness of the popliteal fossa. She diagnosed “sprain of other specified
part of left knee, initial encounter” and advised that appellant was fit for duty with work restrictions
including no prolonged kneeling or squatting. In an October 24, 2017 work status note,
Ms. Fernandes provided the same diagnosis and work restrictions.
In a November 8, 2017 development letter, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how the reported employment incident caused or aggravated a medical condition.
It requested that appellant complete and return an attached questionnaire which posed a question
about whether she had experienced any similar symptoms or disability prior to the claimed
October 21, 2017 injury. OWCP afforded appellant 30 days to submit a response.
On December 7, 2017 OWCP received appellant’s response to its questionnaire attached
to its November 8, 2017 development letter. Appellant advised that she had not experienced any
similar symptoms or disability prior to the claimed October 21, 2017 injury.
Appellant submitted a November 2, 2017 report from Ms. Fernandes who provided
physical examination findings upon examination. Ms. Fernandes indicated that appellant could
continue to work with restrictions including no prolonged kneeling or squatting.

3

Appellant also reported that she twisted her left knee while ascending stairs at work on October 23, 2017.

2

The results of a November 3, 2017 magnetic resonance imaging (MRI) scan of appellant’s
left knee contained an impression of moderate-to-severe patellofemoral compartment degenerative
changes with prominent subchondral bone marrow edema at the patellar median ridge and medial
facet.
In reports dated November 10, 16, and 24, 2017, Ms. Fernandes noted physical
examination findings which were similar to those she detailed in her prior reports. She continued
to note that appellant could work with restrictions.
In a November 24, 2017 report, Dr. Shaheen F. Misbah, an attending Board-certified
family practitioner, indicated that appellant reported sustaining an injury on October 21, 2017 due
to twisting her left knee while pushing a cart. Appellant also reported twisting her left knee again
a few days later while ascending stairs at work. Dr. Misbah noted that appellant had been treated
for her injury on October 24, and November 2, 10, 16, and 24, 2017. She advised that appellant
was seen by Ms. Fernandes under her supervision, and noted that she was placed on light duty and
treated with oral prednisone and anti-inflammatories. X-ray testing of appellant’s left knee only
showed moderate degenerative joint disease and a left knee MRI scan showed moderate-to-severe
patellofemoral compartment syndrome, intact ligaments, and intact menisci. Dr. Misbah noted,
“The twisting motion of the knee aggravated the arthritis in her knee causing pain.” She further
advised that steroid injections and physical therapy had been recommended.
In a duty status report (Form CA-17) dated November 2, 2017, a person with an illegible
signature listed the date of injury as October 21, 2017, identified “left sprain -- knee” as the
diagnosis due to injury, and recommended work restrictions. In a duty status report dated
November 24, 2017, another person with an illegible signature listed the date of injury as
October 21, 2017, identified “[illegible] left knee” as the diagnosis due to injury, and
recommended work restrictions.
By decision dated December 14, 2017, OWCP denied appellant’s claim for an October 21,
2017 employment injury. It accepted that appellant established the occurrence of the employment
incident on October 21, 2017, as alleged, but further found that she failed to establish a diagnosed
medical condition causally related to the accepted October 21, 2017 employment incident. OWCP
determined that Dr. Misbah’s opinion on causal relationship lacked adequate medical rationale.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty, as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally

4

See supra note 1.

3

related to the employment injury.5 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged.7 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish a
traumatic injury causally related to the accepted October 21, 2017 employment incident.
Appellant filed a traumatic injury claim alleging that on October 21, 2017 she sustained a
left knee injury at work. She indicated that, when she was pushing a mail cart over a divet in the
floor, she stepped into the divet, causing her left knee “to go out.” OWCP accepted that appellant
established the occurrence of the employment incident on October 21, 2017, as alleged, but further
found that she failed to establish a diagnosed medical condition causally related to the accepted
October 21, 2017 employment incident.
Appellant submitted a November 24, 2017 report of Dr. Misbah who indicated that
appellant reported sustaining an injury on October 21, 2017 due to twisting her left knee while
pushing a cart.10 Dr. Misbah noted that appellant had been treated for this injury on October 24,
November 2, 10, 16, and 24, 2017. She advised that x-ray testing of appellant’s left knee only
5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6
S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused
by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift. 20 C.F.R. §§ 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
7

Julie B. Hawkins, 38 ECAB 393 (1987).

8

John J. Carlone, 41 ECAB 354 (1989).

9

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

10
Dr. Misbah noted that appellant also reported twisting her left knee a few days later while ascending stairs at
work.

4

showed moderate degenerative joint disease and an MRI scan of her left knee showed moderateto-severe patellofemoral compartment syndrome, intact ligaments, and intact menisci. Dr. Misbah
noted, “The twisting motion of the knee aggravated the arthritis in her knee causing pain.”
The Board finds that Dr. Misbah’s November 24, 2017 report is insufficient to establish
appellant’s claim for an October 21, 2017 employment injury because she did not provide adequate
medical rationale in support of her opinion on causal relationship. The Board has held that a report
is of limited probative value regarding causal relationship if it does not contain medical rationale
explaining how an employment activity could have caused or aggravated a medical condition.11
Dr. Misbah did not describe the accepted October 21, 2017 employment incident in any detail or
explain the medical process through which it could have caused or aggravated appellant’s
underlying left knee condition. She did not explain how specific, objective medical findings
supported her opinion on causal relationship and her opinion appears to be based primarily on
appellant’s recitation of left knee symptoms, which she associated with the October 21, 2017 work
activity.12 The Board has held that the fact that a condition manifests itself or worsens during a
period of employment13 or that work activities produce symptoms revelatory of an underlying
condition14 does not raise an inference of causal relationship between a claimed condition and
employment factors. Dr. Misbah’s November 24, 2017 report is of limited probative value on the
relevant issue of this case for the further reason that it is not based on a complete factual and medical
history. She did not adequately discuss appellant’s prior left knee condition or explain why her
current problems were not solely due to her nonwork-related degenerative condition. The Board has
held that an opinion on a given medical question is of limited probative value if it is not based on
a complete and accurate factual and medical history.15
In a November 2, 2017 duty status report, a person with an illegible signature listed the
date of injury as October 21, 2017, identified “left sprain -- knee” as the diagnosis due to injury,
and recommended work restrictions. In a November 24, 2017 duty status report, another person
with an illegible signature listed the date of injury as October 21, 2017, identified “[illegible] left
knee” as the diagnosis due to injury, and recommended work restrictions. However, these reports
with illegible signatures are of no probative value regarding appellant’s claim for an October 21,
2017 employment injury as the authors cannot be identified as physicians within the meaning of
FECA.16

11

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

12

The Board notes that appellant also advised that she experienced left knee symptoms while walking up stairs at
work on October 23, 2017. However, appellant did not clearly allege that this constituted a second claimed
employment injury. Rather, she appears to have mentioned the symptoms as revelatory of her claimed October 21,
2017 employment injury.
13

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

14

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

15

See supra note 9; see also E.R., Docket No. 15-1046 (issued November 12, 2015).

16

See L.D., Docket No. 17-1808 (issued December 28, 2017); Merton J. Sills, 39 ECAB 572, 575 (1988).

5

Appellant also submitted reports from October and November 2017 of Ms. Fernandes, an
attending physician assistant. However, these reports are of no probative value regarding
appellant’s claim for an October 21, 2017 employment injury because they do not constitute
probative medical evidence from a physician. Under FECA, the report of a nonphysician,
including a physician assistant, does not constitute probative medical evidence.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a
traumatic injury causally related to the accepted October 21, 2017 employment incident.

17

R.S., Docket No. 16-1303 (issued December 2, 2016); L.L., Docket No. 13-0829 (issued August 20, 2013). See
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). In her November 24, 2017 report, Dr. Misbah indicated that she supervised
Ms. Fernandes’ treatment of appellant, but she did not countersign Ms. Fernandes’ reports such that they would
constitute probative medical evidence within the meaning of FECA. See Federal (FECA) Procedure Manual, Part 2 - Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); M.P., Docket No. 17-1221 (issued
August 21, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2017 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: July 3, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jenkintown, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul P. Isicrate, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1812
Issued: January 8, 2008

Case Submitted on the Record

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

JURISDICTION
On June 28, 2007 appellant filed a timely appeal from the November 9, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of his claim. The Board also has jurisdiction to review the June 13, 2007 merit
decision of the Office hearing representative, who affirmed the denial of compensation.
ISSUE
The issue is whether appellant sustained an emotional injury in the performance of duty.
FACTUAL HISTORY
On May 5, 2006 appellant, then a 58-year-old letter carrier, filed a claim alleging that his
post-traumatic stress disorder (PTSD) was a result of his federal employment. He stated:
“Over the last 12 months, I’ve found it increasingly difficult to cope with the
changes in the work environment. Specifically, I’m having a hard time adjusting
to the new direction of management, changes in the expectations for the way I do

my job and the sense that I can never do enough to satisfy my job responsibility to
management. The stress I experience at work has increased to the point where I
have difficulty managing my emotions and am afraid most days that something or
[?] could happen that I could lose control. For the last 10 months I’ve used the
mental health services provided to me by the Veterans Administration to try to
work on this problem but find that I’ve not been successful at finding a solution
for these issues. In a[n] effort to ease or correct the problem I want to explore the
possibility of disability as a solution for my stress.”
Appellant stated that he had a very hard time 12 to 18 months coping with the work
environment. “There are no particular factors or individuals that caused the problem,” he stated.
He blamed instead “the general direction” that management was changing. Appellant stated that
he was repeatedly assaulted by the statement or insinuation by supervisors that the smallest of
infractions relative to the new methods of doing his job would result in some form of discipline.
He explained that a number of practices over the past five years supported his claim of excessive
surveillance, control and intimidation, including the Bar Code Clock Scanning System, the “onecase” system for placing mail for order and delivery and the “four bundle” system. Appellant
stated that he was in a “Catch-22”: “In other words, I was being told, do it our way, we know
your productivity will drop, but be advised that you will be disciplined if your productivity
drops.” He added:
“This atmosphere which emerged in the Postal Service, specifically the
Jenkintown Post Office over the last five years has made it more not only
difficult, but now impossible for me to return to work, knowing that I would be
under constant surveillance and that every aspect of what I did, every day, would
be subject to scrutiny, criticism and possible punishment; and would certainly
involve repeated confrontations with supervisors. Again, over this period, I was
in constant fear of having such confrontations and always felt they had the
potential to escalate into physical violence. Frequent shouting matches occurred
and physical contests were avoided only by me leaving the Post Office.”
Dr. Drew Kerr, appellant’s psychologist, wrote as follows :
“Since his return from Vietnam, [appellant] has chronically struggled with
combat-related PTSD. The disorder is an anxiety disorder that is characterized by
the reexperiencing of an extremely traumatic event accompanied by symptoms of
increased arousal and by avoidance of things associated with the trauma. [His]
problems are of a type and severity where they interfere with his forming and
maintaining interpersonal relationship and have led to his having serious conflicts
with those he relates to, including family and coworkers.
“[Appellant] describes that he’s been increasingly reactive to work-related
stressors to the point where he’s needed to direct much of his energy and attention
to self[-]management and control. He’s found it difficult to report to and remain
at work more days than not and had problems functioning on the job. [He]
reported that on May 5, 2006 he filed a claim for a work-related psychiatric
disability and that he’s unable to effectively perform his job duties.”

2

John Wechsler, appellant’s supervisor acknowledged that appellant had spoken about his
difficulty dealing with everyday happenings inside and outside of work. He stated:
“While at work [appellant] would perform his duties and complete his
assignments in a timely manner. [He] got along very well with his customers and
they were happy with the service he provided. [Appellant] would keep to himself
while at work and was always conscientious about doing a good job. From time
to time [he] would express his discontent with postal policy and would express
how he thought things should be done. The management at the [employing
establishment] had a good working relationship with [appellant] and there were
no apparent problems that would lead us to believe differently.”
Mr. Wechsler stated that there were deadlines, travel and heavy volumes of mail at times,
which could create a degree of stress. Appellant was informed on a regular basis that he was
doing a fine job. “I would regularly inform [him] to take it easy on himself. [He] would get
upset over the policies of the [employing establishment] and how they (PO) should leave things
alone because things are working fine the way they are.” Mr. Wechsler added that there were no
extra workloads put on appellant and staffing shortages did not impact him because he was not
on the overtime-desired list. He noted that appellant would perform his duties in accordance
with expectations: “There were no performance or conduct problems with [appellant]. At times
[he] would get upset over unknown reasons and have to go on the platform to take a break from
work so he could regroup the return back to work.”
Appellant submitted a September 1, 2006 decision from the Department of Veteran
Affairs, which found that his PTSD, which had been 30 percent disabling, was 100 percent
disabling effective March 17, 2006.
In a decision dated November 9, 2006, the Office denied appellant’s claim for
compensation. The Office found that all the factors he implicated were administrative matters
which were not compensable absent proof of error or abuse. The Office found no hard evidence
that his supervisors were abusive or erred in scrutinizing his movements or enforcing policies. In
a decision dated June 13, 2007, an Office hearing representative affirmed the November 9, 2006
decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of an
employee resulting from personal injury sustained while in the performance of duty.1 “Disability”
means the incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.2

1

5 U.S.C. § 8102(a).

2

20 C.F.R. § 10.5(f) (1999).

3

Workers’ compensation does not cover each and every illness that is somehow related to
employment.3 An employee’s emotional reaction to an administrative or personnel matter is
generally not covered. Thus, the Board has held that disciplinary matters,4 investigations,5
determinations concerning the work environment6 and the monitoring of an employee’s work by
a supervisor7 are not compensable factors of employment.
Nonetheless, error or abuse by the employing establishment in an administrative or
personnel matter may afford coverage.8 But perceptions alone are not sufficient to establish
entitlement to compensation. To discharge his burden of proof, a claimant must establish a
factual basis for his claim by supporting his allegations with probative and reliable evidence.9
ANALYSIS
Appellant attributed the aggravation of his PTSD to a change in direction by management
and to new policies that he believed lowered productivity and increased his risk of discipline.
However, his emotional reaction to such administrative matters is not compensable. There is an
exception where management erred or acted abusively, but appellant has submitted no proof of
administrative error or abuse.
Appellant noted that it was impossible for him to return to work knowing he would be
under constant surveillance and that every aspect of what he did would be subject to scrutiny,
criticism and possible discipline. As noted, however, the monitoring of an employee’s work is
not compensable absent evidence of error or abuse. That is management’s prerogative or
obligation and it is not a matter for workers’ compensation unless proof of administrative error
or abuse appears in the record. Appellant alleged “excessive” surveillance, control and
intimidation, but he submitted no evidence to substantiate his allegations. His perception of
excessiveness and intimidation is not enough to establish a factual basis for his claim. Without
evidence to establish administrative error, appellant has not shown that his claim falls within the
scope of workers’ compensation.
Evidence of a disability rating from the Department of Veterans Affairs has no bearing on
the issue raised by appellant’s claim, namely, whether he sustained an injury in the performance
of duty. The VA found appellant 100 percent disabled effective March 17, 2006 due to residuals
of his accepted PTSD. This determination by the VA is not binding on the Office of proof that
3

Lillian Cutler, 28 ECAB 125 (1976).

4

Barbara J. Nicholson, 45 ECAB 803 (1994); Barbara E. Hamm, 45 ECAB 843 (1994).

5

Sandra F. Powell, 45 ECAB 877 (1994).

6

Merriett J. Kauffman, 45 ECAB 696 (1994).

7

Daryl R. Davis, 45 ECAB 907 (1994).

8

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 42 ECAB 566 (1991), reaff’d on
recon., Thomas D. McEuen, 41 ECAB 387 (1990).
9

Ruthie M. Evans, 41 ECAB 416 (1990).

4

his condition was caused or contributed to by a compensable factor of his federal civilian
employment.10 As there is no such proof, the Board will affirm the Office decisions denying his
claim for benefits.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional injury in the performance of duty. There is no proof that management
erroneously or abusively implemented the policies and direction to which appellant attributes his
condition.
ORDER
IT IS HEREBY ORDERED THAT the June 13, 2007 and November 9, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 8, 2008
Washington, DC

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

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

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

10

Decisions of other federal agencies regarding disability are not binding on the Office. The standards for
establishing a work-related disability under the Act are not the same as those set for the VA. See Beverly R. Jones,
55 ECAB 411 (2008); Freddie Mosley, 54 ECAB 255 (2002).

5