United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., claiming as widow of C.L., Appellant
and
CITY OF CHANDLER POLICE
DEPARTMENT, Chandler, AZ, Employer
__________________________________________

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Appearances:
Kenny Thatcher, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1525
Issued: August 27, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 9, 2012 appellant, through her representative, filed a timely appeal from the
March 12, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied her claim for benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the law enforcement officer was an “eligible officer” under 5 U.S.C.
§ 8191.
FACTUAL HISTORY
On August 27, 2010 appellant filed a notice of law enforcement officer’s death and claim
on behalf of widow and children. She alleged that on July 28, 2010 her husband, an undercover
narcotics officer, died from gunshot wounds to the chest while investigating a large-scale
narcotics trafficker.

1

5 U.S.C. § 8101 et seq.

Kenny Thatcher, the property and evidence supervisor for the Chandler Police
Department, responded on behalf of the police chief to OWCP’s questions. He explained that
these types of investigations are very quick. Large-scale buyers come into town with money
wanting to buy large amounts of narcotics and leave pretty quickly, normally within a day or
two. They use middle men to locate and set up the purchases.
The investigation at issue began the morning of the shooting. A confidential informant
working with narcotics unit detectives was contacted by a middle man looking for marijuana.
The unit, including the officer, initiated the investigation. Detective Bugallo was designated the
main undercover with the officer and Detective Arbizu as his assistants. They met with the
middle man earlier in the day to show him a sample of marijuana. The middle man advised that
his buyers wished to buy the marijuana. He set up a meeting for the exchange at a house in
South Phoenix later that afternoon.
Detective Bugallo and the informant went into the house and were shown what was
purported to be the $250,000.00 in cash to buy the marijuana. The officer and Detective Arbizu
were then called and directed to deliver 500 pounds of marijuana to the house. They parked their
vehicle in the garage, as directed, and went inside the house to help identify those participating in
the act and await the arrival of the Special Weapons and Tactics (SWAT) team to assist with the
arrests of the suspects. Sixty seconds after the delivery vehicle drove into the garage, and before
the SWAT team arrived, suspects entered the house with weapons and opened fire on the officers
and informant.
Mr. Thatcher explained that the investigation was not initiated pursuant to a particular
statute. Their investigations begin with a broad spectrum of possibilities for charging suspects,
federally or locally. Normally detectives do not decide on a particular statute when they initiate
this kind of investigation; they wait to see the final evidence to decide what crimes might have
been committed. “While typically we rely on state statutes for most of our prosecutions, when
federal statutes provide greater prosecution and enhanced sentences such as in the case of
weapons violations, repeat offenders, gang members or prohibited possessors of weapons, we
utilize that venue of prosecution.”
Mr. Thatcher advised that the officer was not assigned to a joint federal operation or task
force at the time of his death. Due to the quick time frame of the deal, there was no time to get
positive identification on any suspects nor were any warrants issued.
The undercover narcotics officers were considered the arresting officers, responsible for
identifying the suspects to be arrested, completing the reports and charging documents. They
were discouraged, however from being involved in the initial take down of the suspects, to
minimize the danger of suspects mistaking them as other bad guys trying to take their money.
Tactics for arrest, therefore, involved an arrest team, typically the SWAT team, staged nearby.
Once the undercover officers confirmed the criminal conduct necessary to charge for the
conspiracy and attempt to buy narcotics, a bust signal is given and the arrest team moves in to
assist in making the arrest.

2

Asked whether the officers believed, at the time of the shooting, that a crime was actively
being committed, Mr. Thatcher answered affirmatively:
“Yes. After the initial meeting with the middle man and agreement that the
‘buyers’ wished to purchase the 500 pounds of marijuana, along with
Detective Bugallo seeing what appeared to be $250,000 in cash at the residence
just prior to the ‘delivery’ there was sufficient evidence of crimes being
committed to warrant the arrest of the suspects.”
Mr. Thatcher informed OWCP that the applicable citations for crimes committed at the
time of the investigation were: (1) Attempted possession of a controlled substance (500 pounds
of marijuana) with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846; and
(2) conspiracy to possess a controlled substance with the intent to distribute in violation of the
same statutes.2 He added that the Phoenix Police Department was investigating the officer’s
murder and would decide which venue was appropriate for the prosecution. “With the criminal
histories for some of the suspects, certainly they could have been prosecuted by the U.S.
Attorney here in Phoenix had the investigation outcome been different.”
On January 4, 2011 OWCP denied appellant’s claim for compensation benefits. OWCP
found that the officer was not engaged in the apprehension of a person sought for the
commission of a crime against the United States. Rather, he was involved in the preliminary
stages of an investigation when he was murdered. For consideration under FECA, OWCP
explained, a federal warrant must be outstanding, the warrant must be at least part of the reason
for the apprehension or attempted apprehension, and the apprehension must be in progress,
meaning that officer is trying to take someone into custody or make an arrest.
Appellant requested reconsideration. She argued that the act of arresting the suspects for
the attempted violation of the law prior to the purchase, transport across state lines and
distribution was clearly the prevention of a crime against the United States.
OWCP received a copy of the grand jury indictment, which itemized the state felony
charges made against the suspects. The indictment charged suspects with attempt to commit the
sale of marijuana over the threshold and/or the transportation of marijuana for sale over the
threshold.
On June 6, 2011 OWCP reviewed the merits of appellant’s case and denied modification
of its prior decision. It found that her claim did not meet the necessary criteria under 5 U.S.C.
§ 8191. At the time of the shooting, no federal crime had yet been committed, so it was not
possible to establish that the officer was engaged in the apprehension or attempted apprehension
of a person who committed a federal crime. As the identity of the suspects was unknown, it was
not possible to establish that the officer was in the act of seeking a known felon with an
outstanding federal arrest warrant.
There was no indication, OWCP added, that the suspects were being sought as material
witnesses in a criminal proceeding or that the officers were engaged in protecting or guarding a
2

Mr. Thatcher earlier indicated that the suspects were, at the time of the officer’s death, also in the act of
committing the crime of using or carrying a firearm during and in relation to the commission of a drug trafficking
crime in violation of section 924(c) of Title 18 of the United States Code.

3

person held for the commission of a crime against the United States or as a material witness in
connection with such a crime.
Further, OWCP found that the evidence did not support that the officer, at the time of the
shooting, was engaged in the lawful prevention, or lawful attempt to prevent, the commission of
a crime against the United States. At the time of the shooting, the officers were not specifically
pursuing the suspects for a federal crime. Rather, the intent was to trap them into buying the
marijuana and then charge them with whatever crimes were uncovered. “In this situation, the
connection to a federal crime is too tenuous.”
Appellant again requested reconsideration. She submitted an overview of federal
conspiracy law from the Congressional Research Service, a copy of a Board decision denying
benefits under 5 U.S.C. § 8191, and letters from the United States Department of Justice relating
to Arizona’s Medical Marijuana Program.
Appellant also submitted Mr. Thatcher’s response to OWCP’s decision. Mr. Thatcher
advised that the suspects had committed the crime of conspiracy under 21 U.S.C.
§§ 841(a)(1) and 846. Those acts occurred prior to and continued after the detectives became
involved with the suspects to thwart them from obtaining the objective of the conspiracy -possession of marijuana for distribution -- thus preventing a federal crime from occurring.
Mr. Thatcher explained that the elements necessary to prove the federal crime of conspiracy had
occurred prior to the officer’s death.
Further, Mr. Thatcher noted, the suspects would have been charged with attempted
possession of marijuana, a controlled substance with intent to distribute, which was a federal
crime. Both conspiracy and attempt to possess a controlled substance were the stimuli to which
the detectives responded. The fact that the grand jury charged the suspects with conspiracy and
attempted possession supported that those crimes occurred and that the detectives had probable
cause to arrest the suspects prior to responding to the house to make the arrest. “Federal charges
would have been brought against the suspect if the case had been presented to a federal grand
jury,” but the officer was killed, and a decision was made to prosecute in state court to seek the
death penalty. Indeed, Mr. Thatcher argued, the Federal Government considers any possession
of marijuana to be a violation of federal law.
On March 12, 2012 OWCP once gain reviewed the merits of appellant’s case and denied
modification of its prior decision. It found no evidence that a federal crime had actually been
committed prior to the officer’s death and no evidence that he was engaged in the apprehension
or attempted apprehension of a person who committed a federal crime. OWCP noted no proof of
a federal warrant to support Mr. Thatcher’s contention that a federal crime was in process. The
evidence did not show knowledge of a specific federal crime prior to the events on July 28, 2010.
On appeal, appellant disagrees with OWCP’s finding that no federal crime was
committed or was in the process of being committed when her husband was killed trying to
apprehend the suspects.
The Director argues that the evidence fails to establish that the officer’s death occurred
under circumstances enumerated in 5 U.S.C. § 8191. He submits there was no evidence that a
federal crime had actually been committed; the officer was not assigned to a joint federal or local
operation or task force; the officer was not specifically pursuing the suspects for a federal crime.
4

Further, there was no proof of a federal warrant to support that the federal crime of conspiracy
and attempt to possess a controlled substance was in progress. No federal crime was specifically
being prevented, no threat of a federal crime was actual and imminent, and no federal crime was
charged. The fact that a controlled substance was involved, the Director argues, does not
establish that the officer was engaged in actual or attempted apprehension of a federal criminal
or prevention of a federal crime. He and his fellow officers were performing an investigation in
order to establish the suspect’s potential wrongdoing.
LEGAL PRECEDENT
FECA benefits are available to eligible law enforcement officers under section 8191.
“An eligible officer is any person who is determined by the Secretary of Labor in
his discretion to have been on any given occasion -(1) a law enforcement officer and to have been engaged on that occasion
in the apprehension or attempted apprehension of any person -(A) for the commission of a crime against the United States, or
(B) who at the time was sought by a law enforcement authority of
the United States for the commission of a crime against the United
States, or
(C) who at the time was sought as a material witness in a criminal
proceeding instituted by the United States; or
(2) a law enforcement officer and to have been engaged on that occasion
in protecting or guarding a person held for the commission of a crime
against the United States or as a material witness in connection with such
a crime; or
(3) a law enforcement officer and to have been engaged on that occasion
in the lawful prevention of, or lawful attempt to prevent, the commission
of a crime against the United States;
“and to have been on that occasion not an employee as defined in section 8101(1),
and to have sustained on that occasion a personal injury for which the United
States would be required … to pay compensation if he had been on that occasion
such an employee engaged in the performance of his duty.”3
Regulations implementing section 8191(3) state that for benefits to be payable when an
officer is injured preventing, or attempting to prevent a federal crime, there must be objective
evidence that a federal crime is about to be committed. An officer’s belief, unsupported by
objective evidence, that he is acting to prevent the commission of a federal crime will not result
in coverage. Moreover, the officer’s subjective intent, as measured by all available evidence
(including the officer’s own statements and testimony, if available), must have been directed
3

5 U.S.C. § 8191.

5

toward the preventing of a federal crime. In this context, an officer’s own statements and
testimony are relevant to, but do not control, the determination of coverage.4
Regulations further provide that based on the facts available at the time of the event, the
officer must have an awareness of sufficient information which would lead a reasonable officer,
under the circumstances, to conclude that a federal crime was in progress, or was about to occur.
This awareness need not extend to the precise particulars of the crime (the section of Title 18,
United States Code, for example), but there must be sufficient evidence that the officer was in
fact engaged in actual or attempted apprehension of a federal crime or prevention of a federal
crime.5
ANALYSIS
It is a federal crime for any person knowingly or intentionally to possess, with intent to
manufacture, distribute, or dispense, a controlled substance.6 Marijuana is a controlled
substance.7
The officer became aware that a buyer was looking to purchase -- that is, possess -- 500
pounds of marijuana for $250,000.00. Given the scale of the proposed transaction, it was
reasonable to conclude that the buyer was attempting to possess a controlled substance with
intent to distribute, a violation of federal law.8 As Mr. Thatcher of the Chandler Police
Department explained, large-scale buyers would come into town with money wanting to buy
large amounts of narcotics and leave pretty quickly, normally within a day or two.
A middle man contacted a confidential informant and expressed his intent to purchase a
large quantity of marijuana. The officer and two other undercover detectives in the narcotics unit
met with the middle man to show him a sample. The middle man again expressed intent by
advising that his buyers wished to purchase the marijuana. In an act toward the commission of
this crime, he set up a meeting for the exchange and produced what was purported to be
$250,000.00 in cash. The officer and a third detective delivered the marijuana to the house, as
directed.
Under section 10.739 of the implementing regulations, the officer thus had sufficient
information that would lead a reasonable officer, under the circumstances, to conclude that a
federal crime was about to occur. The officer was an undercover narcotics officer engaged, at
the time of his shooting, in a sting operation designed to prevent the prospective buyers from
distributing a large quantity of marijuana. As measured by all available evidence, it was the
officer’s subjective intent to prevent the knowing or intentional possession of a controlled
substance with intent to distribute, which is a federal crime.

4

Id. at § 10.738(b).

5

Id. at § 10.739.

6

James R. Coon, 43 ECAB 587 (1992), citing 21 U.S.C. § 841(a)(1).

7

Id., citing 21 U.S.C. § 812(c), Schedule 1(c)(10).

8

See 21 U.S.C. § 802(11).

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Accordingly, the Board finds that the officer was a law enforcement officer and engaged
on the occasion of his shooting in the lawful prevention of, or lawful attempt to prevent, the
commission of a crime against the United States. He was therefore an “eligible officer” under 5
U.S.C. § 8191(3).
In James R. Coon,9 the Board reviewed the legislative history of section 8191 and
exhaustively examined case precedent. As one senator observed:
“Congress has established whole categories of offenses against federal criminal
law such as kidnapping, robbery of national banks, taking stolen automobiles
across state lines for which the enforcement and apprehension of the criminals
falls in great part upon local law enforcement officers. Since we ask them to
expose themselves to the dangers of enforcing federal law, it is only just that we
should compensate them as though they were federal officers should they sustain
injury or death in the performance of these duties.”10
This is not a case in which the officer was “merely enforcing local laws,” such as
investigating a local robbery scene,11 picking up from the street a device that the officer thought
was a pen,12 responding to a call that there was a dead woman in an abandoned apartment
building,13 arresting females for prostitution and transporting them back to the station,14 sitting in
a patrol car to complete a missing person report,15 investigating suspects who appeared to be
stealing a car,16 addressing a potential traffic violation17 or pursuing a suspect in a possible
mugging.18
This is a case in which a local law enforcement officer attempted to prevent an activity
that was both a state and a federal crime. In Peter A. Ross,19 the officer, seeking to avoid
coverage under FECA, argued he was enforcing only state law and did not intend to prevent a
federal offense. As there was substantial evidence that a potential federal crime was about to be
committed, the Board held that the fact that the officer was attempting to prevent state law
offenses did not preclude him from preventing potential federal offenses involving the same
subject matter.
9

Supra note 6.

10

Cong. Rec., September 14, 1967, p. 25, 567.

11

Thomas T. Thackerson, 27 ECAB 14 (1975).

12

Michael B. McKeon, 28 ECAB 8 (1976).

13

Angel F. Poggi, 28 ECAB 199 (1977).

14

Edward L. Jackson, 31 ECAB 550 (1980).

15

Pauline Kaner (Kenneth G. Kaner), 31 ECAB 1597 (1980).

16

Dorothy Ryman (Harry Ryman), 33 ECAB 1594 (1982).

17

Rocco A. Ranaudo, 35 ECAB 689 (1984); Lance C. Coleman, 41 ECAB 604 (1990).

18

Donald Rios, 36 ECAB 425 (1985).

19

43 ECAB 126 (1991).

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Similarly, in James R. Coon,20 the officer argued that the scope of his employment was
limited to focusing on state law violations, that he never formulated the intent to prevent the
commission of a potential federal crime. The search warrant issued by the county magistrate
cited no violation of a federal statute. There was no evidence of DEA involvement. Although
the officer had no knowledge of the specific potential violations of 21 U.S.C. § 841(a)(1) or
§ 802(15), the Board found that this did not preclude coverage. At the time of his injury, he was
engaged in attempting to prevent the cultivation and production of marijuana. The fact that the
cultivation and production of marijuana was a violation of state law in no way negated or
diminished the fact that such activities also constituted a violation of federal drug laws. “His
activities, attempting to prevent the cultivation and production of marijuana, at the time injury
was sustained constituted a lawful attempt to prevent a crime against the United States. It was
this very task that the record demonstrates appellant was attempting to fulfill when injured.” In
doing so, the Board continued, the officer was assisting in the enforcement of the laws of the
United States and engaged in activities which the legislative history reveals Congress intended to
cover under FECA.
The Board has thus applied the doctrine of transferred intent where the violation of state
law and federal law both arose from a common nucleus of operative facts. Because the officer
was attempting to prevent the knowing or intentional possession of a controlled substance with
intent to distribute, which is a federal crime under 21 U.S.C. § 841(a)(1), he was engaged on the
occasion of his shooting in the lawful prevention of, or lawful attempt to prevent, the
commission of a crime against the United States. And in doing so, he effectively exposed
himself to the dangers of enforcing federal law.
That the officer was not assigned to a joint federal operation or task force, as the Director
argues, is immaterial. As the Board found in James R. Coon, this is not a condition precedent.
That there was no federal warrant or federal charge made against the suspects is not dispositive.
The Director adds there was no evidence that a federal crime was committed. The evidence
establishes otherwise: the crime of attempt or conspiracy under 21 U.S.C. § 846 had already
been committed at the time of the shooting. Moreover, the completed commission of a federal
crime is not a required element under 5 U.S.C. § 8191(3).21 Section 8191(3) applies to the
lawful prevention of, or lawful attempt to prevent, the commission of a crime against the United
States. The officer, together with his fellow detectives, lawfully prevented the knowing or
intentional possession of a controlled substance with intent to distribute. That is sufficient to
establish coverage under section 8191(3).
The Director also argues that the officer was not specifically “pursuing” the suspects for a
federal crime. However, the Board needs not to decide the issue of whether the officer was
engaged on the occasion of his shooting in the apprehension or attempted apprehension of any
person for the commission of a crime against the United States, under 5 U.S.C. § 8191(1)(A).
Even if the officer were not in pursuit of the suspects, if he were not engaging in the act of
apprehending or attempting to apprehend them after the commission of a federal crime, he is
nonetheless covered under section 8191(3), which relates instead to the lawful prevention of, or
lawful attempt to prevent, the commission of a crime against the United States.

20

Supra note 6.

21

Compare 5 U.S.C. § 8191(1), which applies to apprehension.

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The undercover operation was more than a mere investigation or preliminary inquiry
relating to a potential crime. It was more than the gathering of intelligence for later analysis and
possible action. At the time of his shooting, the undercover officer was, in point of fact, actively
and lawfully engaged in the actual prevention of a federal crime. For this reason, the Board finds
he was an “eligible officer” falling within the coverage of FECA.
CONCLUSION
The Board finds that OWCP abused its discretion in finding that the officer was not an
“eligible officer” under 5 U.S.C. § 8191. The evidence establishes that he was a law
enforcement officer engaged, at the time of the shooting, in the lawful prevention of, or lawful
attempt to prevent, the commission of a crime against the United States.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2012 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action on
appellant’s claim for compensation benefits.
Issued: August 27, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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New Orleans, LA, Employer
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___________________________________________ )
S.C., Appellant

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

Docket No. 08-2448
Issued: June 11, 2009

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 9, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 11, 2007, which denied modification
of an August 4, 2006 decision denying his claim for a schedule award. He also appealed
decisions dated February 25, July 21 and September 4, 2008, which denied appellant’s requests
for reconsideration without a merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained any permanent impairment based on his
accepted injury; and (2) whether the Office properly denied appellant’s request for
reconsideration.
FACTUAL HISTORY
This matter has previously been before the Board. In an August 12, 1997 decision, the
Board set aside Office decisions terminating appellant’s compensation and remanded the case for

further medical development.1 The Board instructed the Office to develop whether his cervical
condition after September 17, 1991 was caused or aggravated by the August 31, 1988
employment injury.2 In a decision dated July 3, 2000, the Board affirmed a December 23, 1997
Office decision terminating appellant’s wage-loss compensation effective September 17, 1991;
however, it reversed the termination of his medical benefits.3 The facts and circumstances of the
case are set forth in the Board’s prior decisions and are incorporated herein by reference.
On June 28, 2001 appellant filed a schedule award claim. In a May 31, 2001 report,
Dr. Mark J. Hontas, a Board-certified orthopedist, found that he had a 10 percent permanent
impairment as a result of his work injury. In letters dated May 31 and July 17, 2001, the Office
requested that Dr. Hontas submit a detailed report providing an impairment rating pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4 On March 4, 2002 Dr. Hontas advised that appellant had residuals form his 1998 work
injury with weakness, pain and loss of range of motion in his neck representing a 10 percent
impairment based on the A.M.A., Guides. In a May 2, 2002 report, an Office medical adviser
opined that the report of Dr. Hontas was insufficient to determine maximum medical
improvement or permanent impairment as he did not provide objective findings or reference the
pertinent tables in the A.M.A., Guides. The medical adviser recommended a second opinion
referral.5
On May 1, 2006 the Office referred appellant for a second opinion to Dr. Christopher
Ecenac, a Board-certified orthopedic surgeon. In a June 19, 2006 report, Dr. Ecenac reviewed
the records provided to him and examined appellant. He noted the history of appellant’s
work-related neck injury. On examination Dr. Ecenac found symmetriced grip strength, normal
reflexes in the upper and lower extremities, full and unrestricted range of motion in the neck and
back and sensory deficits in the median distribution were noted to pin prick and light touch in the
left hand but no deficits were noted in the hands or feet. He related that Tinel’s sign was
negative bilaterally, no muscle spasm in the spine, straight leg raises were normal and no atrophy
was noted in the arms, hands, legs or feet. Examination of the right arm revealed a healed lateral
1

The Office accepted that on August 31, 1988 appellant sustained contusions of the head, right shoulder, right
elbow and neck while in the performance of duty. He received continuation of pay and compensation and returned
to work on July 5, 1990 for four hours per day on limited duty.
2

Docket No. 95-1104 (issued August 12, 1997).

3

Docket No. 98-870 (issued July 3, 2000). Subsequent to the Board’s July 3, 2000 decision, the Board disposed
of three other appeals on procedural grounds. In a December 18, 2001 decision, the Board dismissed appellant’s
appeal for lack of jurisdiction. Docket No. 01-2150 (issued December 18, 2001). In an October 29, 2003 decision,
the Board remanded the case to the Office for reconstruction of the case record. Docket No. 03-35 (issued
October 29, 2003). In a May 2, 2005 decision, the Board dismissed appellant’s appeal for lack of jurisdiction and
also dismissed his petition for reconsideration in 03-35. Docket No. 03-0035 and 04-1180 (issued May 2, 2005).
4

A.M.A., Guides (5th ed. 2001).

5

On May 9 and June 25, 2002 the Office referred appellant to a second opinion physician regarding permanent
impairment and whether he had residuals of his work injury. Appellant did not attend the second opinion
appointments. On July 29, 2002 the Office denied appellant’s schedule award claim. In a September 8, 2005
decision, a hearing representative set aside the July 29, 2002 decision finding that the Office failed to make a finding
with regard to appellant’s reasons for failing to appear for the directed medical examination.

2

incision on the lateral epicondyle, full supination, pronation, flexion and extension of the wrist,
full motion of the elbow and right shoulder, no crepitation of the wrist or elbow or shoulder and
normal shoulder strength with no atrophy. Dr. Ecenac recommended an updated evaluation with
imaging studies and an electromyogram (EMG) prior to an impairment evaluation.
Appellant was referred for a magnetic resonance imaging (MRI) scan of the cervical
spine on June 27, 2006, which revealed cervical spondylosis at C3-4 and C4-5 and C5-6 with
neural foraminal narrowing bilaterally at C5-6. An EMG and nerve conduction studies (NCS)
dated July 3, 2006 revealed no abnormalities. In a supplemental report dated July 5, 2006,
Dr. Ecenac found no evidence to base an impairment rating. He noted normal findings for the
EMG and NCS testing, the MRI scan of the lumbar spine revealed no evidence of cord
compression or nerve root impingement causing any proximal nerve root pathology
diagnostically and there were normal physical findings in the extremities. Dr. Ecenac opined
that appellant had no impairment or residual causally related to his accepted conditions in
accordance with the A.M.A., Guides.
In a July 24, 2006 report, an Office medical adviser reviewed Dr. Ecenac’s opinion and
diagnostic studies and concurred in his findings that there was no evidence to support any
impairment of the upper extremities due to the accepted injuries. The medical adviser further
noted that the spine was not a scheduled member therefore it was not a basis for impairment.
While impairment of an upper extremity due to radiculopathy could be rated under the A.M.A.,
Guides, Dr. Ecenac found no radiculopathy or neuropathy secondary to appellant’s cervical spine
condition. The medical adviser opined that, under the A.M.A., Guides, there was no basis for
rating an impairment based on the accepted conditions.
In a decision dated August 4, 2006, the Office denied appellant’s claim for a schedule
award.
On July 31, 2007 appellant requested reconsideration. In a report dated November 20,
2006, Dr. Hontas noted that appellant’s symptoms were unchanged with pain in the neck
radiating down the left arm. He advised that appellant had 10 percent impairment.
In a decision dated September 11, 2007, the Office denied modification of the August 4,
2006 decision.
On November 7, 2007 appellant requested reconsideration. He submitted reports from
Dr. Hontas dated September 20 and October 29, 2007, who noted that appellant’s symptoms
were unchanged with pain in the neck radiating down the left arm and recommended
conservative treatment. Dr. Hontas noted that an MRI scan showed C5-6 left paracentral
building of the disc material and osteophytic formation producing stenosis and flattening of the
cervical cord, which he opined caused the neck pain and radiculopathy.
In a February 25, 2008 decision, the Office denied appellant’s reconsideration request
finding that it was insufficient to warrant further review of the prior decision.
On June 24, 2008 appellant requested reconsideration and submitted a June 19, 2008
MRI scan of the cervical spine, which revealed a herniated disc and arthritis of the small facet
joints on the left side of his neck that was pinching nerves causing left hand weakness.
3

In a decision dated July 21, 2008, the Office denied appellant’s reconsideration request
finding that it was insufficient to warrant review of the prior decision.
On July 31, 2008 appellant requested reconsideration and asserted that the Office
improperly denied merit review as he submitted new evidence that should have been considered.
He referenced the June 2008 MRI scan of the cervical spine. Appellant further indicated that his
chronic pain should have been considered in his schedule award.
In a decision dated September 4, 2008, the Office denied appellant’s reconsideration
request finding that it was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.8
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.9 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.10 The Board notes that section
8101(19) specifically excludes the back from the definition of “organ.”11 However, a claimant
may be entitled to a schedule award for permanent impairment to an upper or lower extremity
even though the cause of the impairment originated in the neck, shoulders or spine.12
ANALYSIS -- ISSUE 1
On appeal, appellant contends that he is entitled to a schedule award for permanent
partial impairment of the upper extremities and cervical spine. The Office accepted appellant’s
claim for contusions of the head, right shoulder, right elbow, neck and cervical herniated disc at
C5-6. However, as noted, the Act does not allow for a schedule award based on impairment to
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

11

5 U.S.C. § 8101(19).

12

Thomas J. Engelhart, supra note 9.

4

the neck or spine. Appellant may only be awarded a schedule award for impairment to the upper
extremities if such impairment is established as being due to his accepted cervical condition.
On March 4, 2002 Dr. Hontas opined that appellant had residuals from his 1998 work
injury and noted weakness, pain and loss of range of motion in his neck for 10 percent
impairment based on the A.M.A., Guides. On November 20, 2006 he reiterated that appellant
sustained 10 percent impairment. However, these reports are insufficient to establish permanent
impairment for schedule award purposes as Dr. Hontas did not explain how he made this rating
pursuant to the A.M.A., Guides. He failed to reference any tables or charts in support of his
determination.13 Although Dr. Hontas opined that appellant had 10 percent impairment, he failed
to provide findings upon physical examination or other objective clinical evidence of
neurological impairment. The report offered no basis on which to attribute impairment under the
A.M.A., Guides.
The Office referred appellant to Dr. Ecenac, who on June 19, 2006, noted generally
normal sensory and motor findings on examination with no atrophy found in the upper
extremities. Dr. Ecenac requested diagnostic testing before making a final impairment
determination. A June 27, 2006 MRI scan showed cervical spondylosis at C3-4 and C4-5 and
C5-6 with neural foraminal narrowing bilaterally at C5-6. A July 3, 2006 EMG and NCS
revealed no abnormalities. In a July 5, 2006 supplemental report, Dr. Ecenac noted that he found
no evidence on which to base an impairment rating due to appellant’s accepted cervical condition
in accordance with the A.M.A., Guides. He based this finding on normal physical findings upon
examination of the upper extremities, the normal EMG and NCS and the MRI scan showing no
evidence of cord compression or nerve root impingement.
Dr. Ecenac’s reports and the case record were referred to an Office medical adviser. On
July 24, 2006 he concurred with Dr. Ecenac’s determination that there was no evidence to
support any impairment to the upper extremities due to the accepted injuries in accordance with
the A.M.A., Guides. The Office medical adviser noted that Dr. Ecenac conducted a thorough
evaluation of appellant’s upper extremities and found no radiculopathy or neuropathy secondary
to the abnormality of the cervical spine. Dr. Ecenac noted that the spine was not a scheduled
member for purposes of a schedule award.
The Board finds that appellant has no permanent impairment to a scheduled member of
the body pursuant to the A.M.A., Guides. There are no medical reports of record, in
conformance with the A.M.A., Guides, which support that he sustained a ratable impairment to
his upper extremities causally related to his accepted conditions.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,14 the Office has the discretion to reopen a case for
review on the merits. It must exercise this discretion in accordance with the guidelines set forth
13

Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where the
A.M.A., Guides are not properly followed).
14

5 U.S.C. § 8128(a).

5

in section 10.606(b)(2) of the implementing federal regulations,15 which provide that a claimant
may obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law;
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office.]”
Section 10.608(b) provides that any application for review of the merits of the claim,
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.16
ANALYSIS -- ISSUE 2
In his November 7, 2007 request for reconsideration, appellant neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. With respect to the third requirement, submitting relevant and pertinent new evidence
not previously considered by the Office, Dr. Hontas’ reports dated September 20 and
November 29, 2007 are new. However, the reports are essentially duplicative of his reports
dated November 21, 2005 and June 15, 2006, which were considered by the Office in its decision
dated August 4, 2006. Evidence that repeats or duplicates that already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.17 Additionally, the reports
failed to address the issue of whether appellant has work-related permanent impairment of a
scheduled member of the body. Therefore, this evidence was insufficient to require the Office to
reopen the claim for a merit review.
Appellant’s June 24, 2008 request for reconsideration did not allege or demonstrate that
the Office erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by the Office. Appellant submitted
a June 19, 2008 MRI scan of the cervical spine. However, this report is not relevant as it does
not address the issue of permanent impairment due to his accepted conditions. Therefore, the
Office properly determined that this evidence did not constitute a basis for reopening the case for
a merit review.

15

20 C.F.R. § 10.606(b).

16

Id. at § 10.608(b).

17

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

6

In a July 31, 2008 reconsideration request, appellant asserted that he had submitted new
evidence, the June 19, 2008 MRI scan report. He further indicated that his chronic pain should
have been considered in his schedule award. These assertions do not demonstrate that the Office
erroneously applied or interpreted a specific point of law nor do they advance a relevant legal
argument not previously considered by the Office. The underlying condition in this case is
medical in nature. As such, it is appellant’s obligation to submit medical evidence to support
that the sustained permanent impairment is due to his accepted cervical condition. The Office
had previously considered the June 19, 2008 MRI scan report. Appellant did not submit any new
and relevant evidence with his reconsideration request. Therefore, the Office properly denied
this reconsideration request.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his requests for reconsideration.
CONCLUSION
The Board finds that appellant did not establish that he sustained permanent impairment
of his upper extremities due to his accepted cervical condition. The Board further finds that the
Office properly denied his requests for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the September 4, July 21, February 25, 2008 and
September 11, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 11, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, WEST GLEN ANNEX,
Peoria, IL, Employer
__________________________________________

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

Docket No. 07-2437
Issued: March 7, 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 September 25, 2007 appellant filed a timely appeal from a September 7, 2007 merit
decision of the Office of Workers’ Compensation Programs granting her a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of the
right upper extremity.
FACTUAL HISTORY
On July 5, 2005 appellant, then a 56-year-old mail carrier, filed an occupational disease
claim alleging that she sustained numbness of the right hand due to casing and carrying mail.

She did not stop work. The Office accepted appellant’s claim for right carpal tunnel syndrome
and right cubital tunnel syndrome.1
On August 24, 2006 appellant filed a claim for a schedule award. In a report dated
October 10, 2006, Dr. David E. Connor, an attending Board-certified orthopedic surgeon,
discussed appellant’s history of an anterior transposition of the right ulnar nerve and endoscopic
decompression of the right median nerve on December 14, 2005.2 He opined that she had
reached maximum medical improvement and had an 18 percent permanent impairment of the
right upper extremity. Dr. Connor found that appellant had a loss of right hand strength and
“some decreased sensation in the volar aspect of the right ring and small fingers, which will also
add to her permanent disability.” In a note dated October 4, 2006, an occupational therapist
indicated that she had tested appellant’s range of motion, grip strength and sensation on that date
for Dr. Connor.
On November 17, 2006 an Office medical adviser reviewed appellant’s history of a right
carpal tunnel release and ulnar nerve transposition on December 14, 2005. He opined that the
medical evidence was insufficient to determine the extent of her right upper extremity
impairment and recommended further evaluation identifying any residual motor or sensory
deficits in the median and ulnar nerves. The Office medical adviser noted that the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A.,
Guides) did not provide an impairment due to loss of range of motion in compression
neuropathies absent evidence of complex regional pain syndrome (CRPS) or an additional
impairment due to decreased grip strength.
Appellant submitted the October 4, 2006 report from the occupational therapist, who
listed grip and pinch strength for the right and left hands and range of motion measurements of
the wrists, forearms, elbows, shoulders, hands and fingers. The occupational therapist found that
appellant had a loss of sensation in the small finger and numbness in the finger with two-point
discrimination. Appellant had normal sensation of the dorsum of the hand. The occupational
therapist concluded that appellant had a 22 impairment due to loss of range of motion
On February 26, 2007 an Office medical adviser reviewed the reports from the
occupational therapist obtained for Dr. Connor, who noted that appellant had normal SemmesWeinstein monofilament testing but decreased two-point discrimination by 8 to 10 millimeters in
the ulnar nerve distribution. The Office medical adviser found that appellant had a Grade 4
sensory deficit for loss of sensation of the ulnar nerve which constituted a two percent
impairment of the right upper extremity according to Tables 16-15 and 16-10 on pages 492 and
482 of the A.M.A., Guides. He determined that she was not entitled to a greater impairment due
to loss of range of motion as there was no evidence of a regional pain syndrome. The Office
medical adviser also found that appellant’s grip strength values did not show a permanent
impairment under the A.M.A., Guides. He concluded that she reached maximum medical
improvement on March 15, 2006.
1

A June 23, 2005 electromyogram and nerve conduction study revealed moderately severe right ulnar cubital
tunnel syndrome and slight to moderate carpal tunnel syndrome.
2

The operative report is not in the record.

2

By decision dated September 7, 2007, the Office granted appellant a schedule award for a
two percent permanent impairment of the right upper extremity. The award ran for 6.24 weeks
March 14 to April 27, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,3 and its
implementing federal regulations,4 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform standard
applicable to all claimants.5 Office procedures direct the use of the fifth edition of the A.M.A.,
Guides, issued in 2001, for all decisions made after February 1, 2001.6
The A.M.A., Guides provides, “In compression neuropathies, additional impairment
values are not given for decreased grip strength. In the absence of CRPS, additional impairment
values are not given for decreased motion.”7
It is well established that the period covered by the schedule award commences on the
date that the employee reaches maximum medical improvement from the residuals of the
accepted employment injury. The Board has explained that maximum medical improvement
means that the physical condition of the injured member of the body has stabilized and will not
improve further. The determination of whether maximum medical improvement has been
reached is based on the probative medical evidence of record, and is usually considered to be the
date of the evaluation by the attending physician which is accepted as definitive by the Office.8
The Board has noted a reluctance to find a date of maximum medical improvement
retroactive to the award, as retroactive awards often result in payment of less compensation
benefits. The Board, therefore, requires persuasive proof of maximum medical improvement for
selection of a retroactive date of maximum medical improvement.9

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

20 C.F.R. § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

7

A.M.A., Guides at 494.

8

Mark A. Holloway, 55 ECAB 321 (2004).

9

James E. Earle, 51 ECAB 567 (2000).

3

ANALYSIS
The Office accepted that appellant sustained carpal and cubital tunnel syndrome of the
right hand. She underwent an anterior transposition of the right ulnar nerve and endoscopic
decompression of the right median nerve on December 14, 2005.
On October 4, 2006 an occupational therapist evaluated the extent of appellant’s
permanent impairment of the right upper extremity for Dr. Connor. She measured grip and pinch
strength for the right and left hands and provided range of motion measurements for the upper
extremities. The occupational therapist further determined that appellant had a loss of sensation
in the small finger with two-point discrimination. She found that appellant had a 22 percent
impairment due to loss of range of motion. The A.M.A., Guides, however, states that additional
impairment values are not provided for decreased motion in the absence of complex regional
pain syndrome.10
On October 10, 2006 Dr. Connor opined that appellant had reached maximum medical
improvement. He indicated that she had a loss of strength of the right hand and decreased
sensation in the right ring and small fingers. Dr. Connor concluded that appellant had an 18
percent permanent impairment of the right upper extremity. He did not, however, explain how
he calculated the impairment percentage with reference to the tables and pages of the A.M.A.,
Guides. As Dr. Connor did not provide an impairment determination in accordance with the
A.M.A. Guides, his opinion is of diminished probative value.11
An Office medical adviser reviewed the evidence and noted that appellant had decreased
two-point discrimination in the ulnar nerve distribution. He found that she had a Grade 4
sensory deficit for loss of sensation of the ulnar nerve which he multiplied to find a two percent
right upper extremity impairment according to Tables 16-15 and 16-10 of the A.M.A., Guides.
The Board notes that this would comport with the A.M.A., Guides, as a Grade 4 sensory deficit
with pain would warrant an impairment percentage of between 1 and 25 percent.12 If the
maximum sensory deficit percentage of 25 is multiplied by 7, the maximum impairment for the
ulnar nerve according to Table 16-15 on page 392, the result is a 1.75 percent impairment due
sensory deficit which when rounded yields a 2 percent impairment.13 There is no medical
evidence of record which provides an impairment rating of appellant’s right upper extremity
establishing greater impairment.
It is well established that the period of a schedule award commences on the date that the
employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The determination of whether maximum medical improvement has been
reached is based on the probative medical evidence of record and is usually considered to be the
10

A.M.A., Guides 494-95.

11

Mary L. Henninger, 52 ECAB 408 (2001).

12

A.M.A., Guides 482, Table 16-10.

13

Impairment percentages are rounded to the nearest whole point. Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.3b (June 2003).

4

date of the evaluation by the attending physician which is accepted as definitive by the Office.14
The Board has noted a reluctance to find a date of maximum medical improvement which is
retroactive to the award, as retroactive awards often result in payment of less compensation
benefits.15 The Board, therefore, requires persuasive proof of maximum medical improvement
for selection of a retroactive date of maximum medical improvement.16 Dr. Connor found that
appellant reached maximum medical improvement in a report dated October 10, 2006. The
Office medical adviser, however, found that appellant reached maximum medical improvement
on March 15, 2006. He did not provide any rationale for his finding and thus did not present the
persuasive proof necessary to support a retroactive date of maximum medical improvement.17
The Board, therefore, finds that the period of the schedule award should commence on
October 10, 2006, the date of the evaluation by Dr. Connor. The case will be remanded for the
Office to determine whether the change in the date of commencement of the schedule award
changes the pay rate applicable to the schedule award.
CONCLUSION
The Board finds that appellant has no more than a two percent permanent impairment of
the right upper extremity. The case will be remanded to change the date the schedule award
begins and to determine whether the change alters the pay rate.

14

Mark A. Holloway, supra note 8.

15

James E. Earle, supra note 9.

16

Id.

17

Appellant underwent a right carpal tunnel release in December 2005 and thus the date of maximum medical
improvement found by the Office medical adviser is only three months after her surgery.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 7, 2007 is affirmed in part and set aside in part and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: March 7, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VA MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 20-1307
Issued: June 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2020 appellant filed a timely appeal from a May 13, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On July 20, 2017 appellant, then a 49-year-old nurse, filed an occupational disease claim
(Form CA-2) alleging that he sustained a mental illness as a result of undue stress causally related
1

5 U.S.C. § 8101 et seq.

to factors of his federal employment. He attributed his condition to harassment by management.
Appellant became aware of his condition and attributed it to factors of his federal employment on
April 1, 2011. He was last exposed to the conditions identified as causing his condition on July 11,
2017, the date he stopped work.
In a development letter dated August 3, 2017, OWCP advised appellant of the factual and
medical evidence necessary to establish his claim and attached a questionnaire for his completion.
In a separate development letter of even date, it requested that the employing establishment provide
additional information regarding his alleged injury, including comments from a knowledgeable
supervisor regarding the accuracy of his allegations and an explanation of any areas of
disagreement. OWCP advised the employing establishment that, under 20 C.F.R. § 10.117(b), it
could accept appellant’s allegations as factual if it failed to provide a complete reply. It afforded
both parties 30 days to submit the requested evidence.
In an August 31, 2017 response, appellant asserted that A.P., a manager, had harassed him
for the last two years that he had worked in the intensive care unit (ICU). A.P. and A.S., another
manager, had singled him out for discipline and created a hostile work environment. Appellant
maintained that he was “maliciously assigned” to administrative work details during simple
investigations and received excessive discipline in the form of a 14-day suspension. He related
that he was discriminated against on the basis of race and that A.P. had harassed him in a public
area. Appellant indicated that he had filed four Equal Employment Opportunity (EEO) complaints
prior to August 2017. Management retaliated against him by failing to release him after he
obtained another position in the employing establishment.
Appellant further related that A.S. had sent him six interrogating e-mails a day for eight or
nine days without cause and that he was unjustly placed in nonregistered nurse positions. He
advised that he had been detailed for eight months after an employee asked for his help disposing
of a narcotic medication. Appellant asserted that “a Filipino nurse” had received a lesser
disciplinary action for a significantly more serious infraction.
OWCP received a February 5, 2017 proposed 14-day suspension of appellant for failure to
follow an instruction to transport a patient from the ICU and for failure to follow procedures by
disposing of a syringe of morphine without a witness. On March 30, 2017 the employing
establishment finalized the proposed 14-day suspension.
Appellant submitted evidence from his EEO complaint, including a letter from the
employing establishment accepting a list of incidents for investigation. He also submitted an
e-mail indicating that he had been tentatively offered and had accepted a registered nurse position
and requesting information for the transfer.
In an October 31, 2017 development letter, OWCP again requested that the employing
establishment review appellant’s allegations and provide comments regarding their accuracy from
a knowledgeable supervisor. It also explained that it could accept his allegations as factual under
20 C.F.R. § 10.117(b) if it did not fully respond to its request. OWCP requested a response within
30 days.

2

The employing establishment did not respond to OWCP’s August 3 and October 31, 2017
requests for information.
By decision dated December 27, 2017, OWCP denied appellant’s emotional condition
claim. It found that he had not established any compensable employment factors.
On January 23, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.2
Following a preliminary review, by decision dated June 1, 2018, OWCP’s hearing
representative vacated the December 27, 2017 decision. She found that OWCP had not adequately
developed the factual aspect of the case. The hearing representative instructed OWCP to provide
appellant’s August 31, 2017 letter to the employing establishment for review and comment and to
obtain statements from the implicated individuals, including A.P. and A.S.
In a development letter dated June 4, 2018, OWCP requested that the employing
establishment review and discuss an enclosed copy of appellant’s August 31, 2017 statement and
provide responsive statements from A.P. and A.S. regarding his allegations. It again advised that,
under 20 C.F.R. § 10.117(b), it could accept his allegations as factual in the absence of a complete
response from the employing establishment. OWCP afforded the employing establishment 30
days to submit the requested information.
On September 25, 2018 OWCP resent the employing establishment a copy of its June 4,
2018 development letter and requested a prompt response. It noted that it had previously sent
development letters on August 3 and October 31, 2017, but had received no response. The
employing establishment did not respond to OWCP’s request for information.
By decision dated November 26, 2018, OWCP denied appellant’s emotional condition
claim, finding that he had failed to establish a compensable employment factor.
Thereafter, OWCP received an undated letter from appellant’s attorney noting the
employing establishment had repeatedly ignored its request for information.
On December 19, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.3
A telephonic hearing was held on April 25, 2019. At the hearing, appellant advised that he
had filed a complaint with the Equal Employment Opportunity Commission (EEOC) regarding his
14-day suspension. In 2011, he began experiencing hostility from two Filipino coworkers, J.G.
and M.L. J.G. had told a senior nurse to give appellant “hell.” M.L. belittled him before his peers
and because of this the other nurses did not want to watch his patients during breaks. Appellant
requested reasonable accommodation, but the request was denied. In 2016, A.P. wanted him to
report on a patient, but a physician told him to take another patient to nuclear medicine for an
2

Appellant also submitted a subpoena request.

3
On February 12, 2019 appellant requested subpoenas be issued for a list of individuals at the employing
establishment. On March 22, 2019 OWCP denied his subpoena request.

3

emergency scan. A.P. was angry and accused him of not properly transferring the other patient
even though he had handed the patient off to other nurses. She came into the ICU where he was
watching the critically ill patient and began yelling at him to return upstairs. J.A., a coworker,
witnessed the incident. On one occasion a barcode scanner was not working on a medication so
he gave the medication to another nurse when he handed off the patient. A.P. accused him of
stealing medication and called the police. During the investigation, he was transferred from patient
care. Appellant received a job offer within the employing establishment at a different location that
was rescinded after management intervened.
Thereafter, appellant submitted a June 22, 2016 report of contact form. J.A., a coworker,
advised that on that date a woman was “screaming at the top of her lungs at [appellant] who was
seated in a chair next to the patient.” J.A. asserted that the behavior was not professional.
By letter dated July 20, 2016, the employing establishment notified appellant that it had
detailed him from his registered nurse duties to patient transport.
In a statement dated June 5, 2017, L.S., a nurse, related that, in September 2015, she heard
A.P. tell a nurse that she should write appellant up. The nurse declined, but A.P. stated that she
would type up the report of contact. The nurse “eventually agreed after continued pressure.” L.S.
thought the action was grievous.
On May 28, 2019 OWCP received a chronological list of the events from appellant that he
maintained had resulted in his psychological injury. Appellant advised that, in September 2015,
A.P. had written a report on another employee’s behalf in order to harass him. In June 2016, A.P.
was verbally abusive when appellant was with a critically ill patient. He related that J.A., another
employee, wrote a report of the incident indicating that A.P.’s actions were unprofessional. In
August 2016, A.S. detailed him to transportation. He was told to transport patients and wait
outside, but the nurses were upset that he did not assist them. A.S. sent appellant multiple e-mails
about the situation. In November 2016, a Caucasian coworker failed to follow narcotic waste
procedures, but received no discipline, but when it happened to appellant, he was removed from
his duties as a nurse for six months. He got another job in February 2017, but the offer was
rescinded. In March 2017, appellant informed the employing establishment that the notice of
proposed suspension had mistakenly identified him as the individual who found the narcotic and
that it was his cart. In April 2011, he had requested reasonable accommodation due to mental
illness.
By decision dated July 9, 2019, OWCP’s hearing representative vacated the November 26,
2018 decision. He remanded the case for OWCP to obtain comments from the employing
establishment with a copy of the hearing transcript and appellant’s post-hearing statement.
In a July 30, 2019 development letter, OWCP outlined appellant’s allegations at the hearing
and in his post-hearing statement and requested that the employing establishment submit
comments from a knowledgeable supervisor regarding the accuracy of his allegations. It further
requested that it explain any aspects of disagreement and submit supporting evidence. OWCP
again advised that without a reply it could accept appellant’s allegations as factual under 20 C.F.R.
§ 10.117(b).

4

By decision dated September 19, 2019, OWCP denied appellant’s emotional condition
claim as he had not established any compensable employment factors.
On October 21, 2019 appellant noted that the employing establishment had repeatedly
failed to submit information as requested by OWCP.
On January 10, 2020 appellant requested reconsideration.
On February 3, 2020 OWCP provided the employing establishment with a copy of
appellant’s request for reconsideration and asked that it provide any comments.
The record contains a February 3, 2020 note from the employing establishment to OWCP,
indicating that it had received its February 3, 2020 letter. No further response was received.
By decision dated May 13, 2020, OWCP denied modification of its September 19, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim,5 including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability for work for which he or she
claims compensation is causally related to that employment injury.6 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease.7
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
4

Supra note 1.

5
S.S., Docket No. 19-1021 (issued April 21, 2021); O.G., Docket No. 18-0359 (issued August 7, 2019); J.P., 59
ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).
6

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

7

20 C.F.R. § 10.115; M.K., Docket No. 18-1623 (issued April 10, 2019); Michael E. Smith, 50 ECAB 313 (1999).

8

See S.K., Docket No. 18-1648 (issued March 14, 2019); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

compensable.9 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.10
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.11 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.12
OWCP’s procedures provide:
“An employee who claims to have had an emotional reaction to conditions of
employment must identify those conditions. The [claims examiner] must carefully
develop and analyze the identified employment incidents to determine whether or
not they in fact occurred and if they occurred whether they constitute factors of the
employment. When an incident or incidents are the alleged cause of disability, the
[claims examiner] must obtain from the claimant, agency personnel and others,
such as witnesses to the incident, a statement relating in detail exactly what was
[stated] and done. If any of the statements are vague or lacking detail, the
responsible person should be requested to submit a supplemental statement
clarifying the meaning or correcting the omission.”13
OWCP’s regulations provide that an employer who has reason to disagree with an aspect
of the claimant’s allegation should submit a statement that specifically describes the factual
argument with which it disagrees and provide evidence or argument to support that position.14 Its
procedures further provide in certain types of claims, such as a stress claim, a statement from the
employer is imperative to properly develop and adjudicate the claim.15

9
A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
10

Lillian Cutler, id.

11

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., supra note 5.

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997). See
S.L., Docket No. 17-1780 (issued March 14, 2018).
14

20 C.F.R. § 10.117(a). See M.T., Docket No. 18-1104 (issued October 9, 2019).

15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2)
(June 2011).

6

ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant attributed his stress-related condition to various incidents from 2011 to 2017 that
he maintained constituted harassment by management. He asserted that A.P. and A.S. had
disciplined him unfairly and created a hostile work environment. Appellant alleged that A.P. had
verbally abused him in a public setting. He maintained that he was assigned to long work details
during simple investigations and received excessive discipline. Appellant contended that
management had discriminated against him based on race and retaliated against him after he
obtained another position. He further alleged that A.P. verbally harassed him and falsely accused
him of stealing medicine. In support of his contentions, appellant submitted a June 22, 2016 report
of contact form from J.P., who maintained that a woman had screamed at appellant in an
unprofessional manner as he sat by a patient. He further submitted a June 5, 2017 statement from
L.S., who advised that A.P. had pressured another nurse to discipline appellant in an inappropriate
manner.
OWCP, in development letters dated August 3 and October 31, 2017, requested that the
employing establishment review appellant’s allegations, describe any points of disagreement, and
provide comments from a knowledgeable supervisor regarding the accuracy of his statements. The
employing establishment did not respond to OWCP’s requests.
Following a preliminary review, by decision dated June 1, 2018, OWCP’s hearing
representative instructed OWCP to provide appellant’s most recent statement describing the
incidents to which he attributed his stress-related condition to the employing establishment for
review and comment. She advised that OWCP should obtain statements from individuals
implicated in the events, in particular A.P. and A.S.
In development letters dated June 4 and September 25, 2018, OWCP requested that the
employing establishment review appellant’s allegations and provide a response from a
knowledgeable supervisor regarding their accuracy, explain any points of disagreement, and
provide statements from A.P. and A.S. The employing establishment did not respond to OWCP’s
requests.
By decision dated July 9, 2019, an OWCP hearing representative remanded the case for
OWCP to obtain comments from the employing establishment.
In a development letter dated July 30, 2019, OWCP described the allegations made by
appellant at the hearing and in a post-hearing statement and requested comments from a
knowledgeable supervisor regarding the accuracy of the contentions, and submitting any
supporting evidence if it disagreed with any aspect of the claim. The employing establishment did
not respond to OWCP’s request.
As noted, OWCP’s regulations provide that an employer with reason to disagree with any
aspect of appellant’s claim shall submit a statement describing its disagreement with a specific

7

allegation or argument and submit evidence such as witness statements supporting its position.16
OWCP’s procedures provide that, if an employment establishment fails to respond to a request for
comments on a claimant’s allegations, OWCP’s claims examiner may accept the claimant’s
statements as factual.17 OWCP has repeatedly attempted to obtain information from the employing
establishment regarding appellant’s allegations. It further has informed the employing
establishment of the provisions of 20 C.F.R. § 10.117 and that it may accept appellant’s allegations
as factual if it failed to respond adequately to its request for information. The employing
establishment has egregiously failed to respond to OWCP’s request for information, only advising
OWCP that it received their request. As the employing establishment has not complied with
OWCP’s multiple requests, nor proffered a reason for not doing so, the Board finds that appellant’s
allegations are accepted as factual.18
As appellant has established compensable factors of employment, OWCP must base its
decision on an analysis of the medical evidence. The case will, therefore, by remanded to OWCP
to analyze and develop the medical evidence.19 After this and such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has established compensable factors of employment. The
Board further finds that the case is not in posture for decision regarding whether appellant
sustained an emotional condition in the performance of duty. The case is remanded for further
development of the medical evidence.

16

Supra note 14.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5d(1)
(June 2011). See also M.T., supra note 14; L.B., Docket No. 17-1671 (issued November 6, 2018).
18

Id. See generally, C.E., Docket No. 07-2261 (issued November 24, 2008).

19

See S.K., Docket No. 18-0705 (issued July 29, 2020); C.S., Docket No. 19-0116 (issued January 10, 2020).

8

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2020 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: June 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0059
Issued: June 12, 2019

Case Submitted on the Record

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

JURISDICTION
On October 10, 2017 appellant filed a timely appeal from a September 7, 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 an injury in the
performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the September 7, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On July 21, 2017 appellant, then a 53-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she experienced “nausea and sweating” at 7:00 a.m. on July 15, 2017
while in the performance of duty. On the reverse side of the form, the employing establishment
indicated that her regular work hours were from 8:00 a.m. to 4:30 p.m., that she was not on the
clock when she allegedly experienced vomiting and nausea which had occurred one hour before
her shift. Appellant did not stop work. The employment establishment controverted the claim
arguing that it was a “personal issue.”
In a July 15, 2017 narrative statement, appellant indicated that at approximately 8:00 a.m.
she went into work and “it felt like everything was spinning.” She reported to her supervisor that
she did not feel well, as her head and neck were in excruciating pain, she could not breathe, she
felt weak, and her body would not stop trembling. Appellant stated that she could not stand up,
and then her supervisor called 9-1-1 and she was taken to the hospital.
In an emergency room report dated July 15, 2017, Dr. Anthony J. Loffredo, a Boardcertified emergency medicine physician, diagnosed vertigo.
In a development letter dated August 1, 2017, OWCP notified appellant of the deficiencies
of her claim and requested that she submit additional factual and medical evidence in support of
her claim. It requested a physician’s opinion as to how her injury resulted in her condition and
asked her to complete an attached questionnaire. Appellant did not respond.
On July 28, 2017 the employing establishment controverted appellant’s claim, contending
that her disability was not caused by a work-related injury.
By decision dated September 7, 2017, OWCP denied the claim, finding that appellant had
not met her burden of proof to establish that the injury and/or events occurred on July 15, 2017 as
alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.7 Second, the
employee must submit sufficient evidence to establish that the employment incident caused a
personal injury.8
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his subsequent course of action.9
The employee has not met her burden of proof of establishing the occurrence of an injury when
there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim. Such circumstances as late notification of injury, lack of confirmation of injury, continuing
to work without apparent difficulty following the alleged injury, and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established. An employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty.
Appellant has not established the factual component of her claim as she failed to explain
how and when her claimed injury occurred. In a development letter dated August 1, 2017, OWCP
requested that she submit clarifying information describing how and when her claimed injury
occurred. However, appellant did not complete and return the questionnaire and there is no
consistent statement in the record describing the specific alleged employment-related incident and
the time it occurred.11 As she has not responded to the request for factual information, the Board
finds that the record lacks sufficient factual evidence to establish specific details of how the
claimed injury occurred.12
The Board further finds that because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

9

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

10

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11

See D.C., Docket No. 18-0082 (issued July 12, 2018).

12

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).

3

establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2019
Washington, DC

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

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

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

13

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

4