United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
DEPARTMENT OF THE AIR FORCE,
BUCKLEY AIR FORCE BASE, Aurora, CO,
Employer
__________________________________________

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

Docket No. 15-0647
Issued: August 20, 2015

Case Submitted on the Record

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

JURISDICTION
On January 23, 2015 appellant filed a timely appeal from a July 31, 2014 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On March 12, 2014 appellant, then a 55-year-old supply technician, filed a traumatic
injury claim alleging that on March 10, 2014 she suffered work-induced depression, anxiety, and
1

5 U.S.C. § 8101 et seq.

nervous breakdown from hostile working conditions, intimidation, and harassment, which had
begun in March 2013. She stopped work on March 10, 2014 and returned to work the following
day, March 11, 2014. Appellant stopped work again on March 13, 2014. She returned to fulltime full-duty work in a new position as a secretary on May 12, 2014.
With her claim, appellant submitted a January 1, 2014 SF-50, Notification of Personnel
Action, a copy of a supply technician position description, and April 2001 classification
certification for supply technician position.
In a March 21, 2014 letter, OWCP advised appellant that the evidence submitted was
insufficient to support her claim and requested additional factual and medical evidence.
Appellant was accorded 30 days in which to submit such information. OWCP advised appellant
on April 4, 2014 that her claim would be developed as an occupational disease claim.
In numerous statements dated April 6, 18, 24, and 28 and May 9 and 10, and June 6, 2014
appellant made allegations regarding interactions with coworkers, her supervisor, and upper
management, which she stated established a hostile and discriminatory work environment.
Regarding a hostile work environment created by coworkers, appellant alleged that on
February 14, 2013 her coworker, L.J., followed and stalked her when she went to the other
warehouse. She stated that L.J. told her supervisor that she was performing inventory, which
was not true. Appellant alleged that her office mate, R.J., rearranged their shared office and had
built a wall around his desk during the time she was out in May 2013 for shoulder surgery. She
also alleged that another coworker, R.M., sprayed bathroom spray on her on May 28, 2013
because he did not like the menthol scent of the anti-pain cream she was using on her
shoulder/arm for torn rotator cuff and arthritis. Appellant alleged that her supervisor took no
action after being told of these incidents, but that upper management offered her a temporary
detail. When appellant returned to her regular duty station some weeks later to retrieve food she
had left in a refrigerator, she saw that L.J. had written on the dry erase board, next to her name,
“gonna move! gonna move! gonna move!. Appellant indicated the dry erase board was near her
supervisor’s office door and next to the daily safety check sheet.
Appellant also made several allegations of harassment against her supervisor, L.R. On
January 6, 2013 she indicated that L.R. came to her while she was preparing labels at her desk
and demanded the keys for the two cabinets. Appellant alleged that L.R. snatched both keys for
the cabinet out of her hand and stated: “the keys stay in the cabinet” and walked off. She stated
that she tried to explain why she had the cabinet keys, but L.R. locked her office door. On
January 10, 2013 appellant mentioned to L.R. that she was going to apply for the vacant GS-6
supply technician position in material acquisition when it became available and was told “but I
don’t have to select you.” During a meeting on February 13, 2013, L.R. told attendees that
appellant “grunts.” In January 2013, L.R. told her verbally and in writing that she needed to
bring a doctor’s note for the over-the-counter anti-pain cream and suggested that she purchase a
different type of anti-pain cream which did not have a menthol scent. Appellant stated that on
several occasions, February 6, 22, and 29, 2013, L.R. told her to “find another job if you do not
like it.”

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On February 28, 2013 L.R. directed appellant who she was allowed to speak to or contact
regarding SAIC-follow ups, orders, and work-related issues. She also indicated on February 28,
2013 that all outgoing e-mails had to be sent to her first for review and approval before mailing it
to the recipient. Appellant alleged that L.R. did not indicate a reason why she had to be first for
“review and approval” and that it was a drastic measure considering that she had been
performing without any problems for over one year without a supervisor. On March 4, 2013
L.R. reprimanded her for sending an e-mail without prior review and approval. Appellant
disagreed with the reprimand. On March 6, 2013 L.R. gave her a letter of admonishment, in
front of D.S. from the electrical shop, for having courtesy copied herself on e-mails to and from
L.R. Appellant indicated that there was no reason to embarrass her in front of D.S. On March 6,
2013 she also informed L.R. that she was on sick leave due to medical problems arising out of
the hostile working situation, but L.R. never addressed her concerns.
Regarding her interactions with upper management, appellant alleged that on
February 12, 2013, she informed B.K. about her fall in the parking lot at work in
December 2012, and also informed him that L.R. had an issue with the anti-pain cream she was
using. However, B.K. did not respond to her complaints.
On March 1, 2013 appellant alleged that B.K. mockingly waived a copy of her e-mail to
him and stated “so you don’t like supervisor [L.R.’s] new policy, hmm?” She alleged that L.R.
had told B.K. that she was creating excessive e-mail traffic, which was not true. Without even
verifying the facts, B.K. stated “all out-going emails go to L.R. first.” Appellant told B.K. that
she no longer felt comfortable bringing any questions or issues to him because of the way he
treated her.
In a December 22, 2013 formal Equal Employment Opportunity (EEO) complaint,
appellant alleged disability discrimination, hostile working conditions, and equal pay complaint.
She alleged that on January 7, 2013 she became aware that she was being paid as a GS-5 supply
technician but was doing GS-6 and GS-7 supply technician work in the Material Acquisition
section from April 2011 through January 2013. Appellant was told on October 22, 2013 by B.K.
that there was no remedy for her equal pay for equal work situation.
On January 21, 2014 appellant was informed that she was being assigned back to the
Material Acquisition section beginning on February 3, 2014. She started having severe anxiety
and trouble sleeping. On January 31, 2014 Deputy Director G.L. advised her that she did not
have to return to Material Acquisition. Appellant began crying and having a nervous breakdown.
She recalled giving G.L. a hug in gratitude for not sending her back to Material Acquisition. On
February 19, 2014 appellant received an oral admonishment from G.L. for inappropriate conduct
and unwanted physical touching, which she claimed was in direct retaliation for having filed an
EEO compliant against management.
On March 4, 2014, appellant was advised to return to work under L.R. again, but from a
different location.
Appellant received a proposed suspension on March 13, 2014, which she believed was
based on an intentionally fabricated lie that she had threatened Chief of Engineering Operations
M.B. on February 4, 2014 and put M.B. in fear of physical harm. She had an anxiety attack

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which appellant believed was due to the lies that were made in retaliation of the EEO complaint
she filed.
Appellant submitted several e-mails, statements, and other evidence in support of her
allegations, along with copies of civilian progress review worksheets for May through
November 2011 and civilian ratings of record signed July 13, 2011 and September 9, 2013.
Medical reports and excuse notes from Jae Young Lee, D.O. noted anxiety and
depressive disorder exacerbated by work issues and two panic attacks related to work-related
stress and anxiety-related work stress. Also received was a March 10, 2014 emergency
department report diagnosing weakness, dysphasia, and headaches.
In an April 6, 2014 letter, appellant alleged that M.B. and G.L. intentionally, knowingly,
and with malice provided false answers and false statements pertaining to her claim form. In a
March 31, 2014 letter, she alleged that she was discriminated against and subjected to hostile
working conditions when she had to attend a “feed back” meeting on February 19, 2014 with
G.L. Appellant alleged that G.L. did not respond to her e-mails regarding the nature of the
meeting and she had no time to bring a personal representative of her choice, but that she was
tricked into coming to G.L.’s office for a “feed-back” meeting when instead she was presented
with a letter of admonishment for sexual harassment and unwanted touching for giving G.L. a
hug and shaking his hand. She indicated that witness statements had been collected which stated
she was crying uncontrollably, was traumatized. Allegedly these witness statements also
reflected that appellant thanked G.L. for not moving her to Material Acquisition again and that
she was giving him a hug in gratitude for not moving her back to Material Acquisition. A copy
of her EEO complaints was provided.
The employing establishment controverted the claim on July 22, 2014. In a July 21, 2014
joint response, Captain M.B. and G.L. related the following: since March 2013, appellant had
made multiple claims of hostile work environment. The claims appear to have started with
minor issues between appellant and two other employees and a supervisor within the Material
Acquisition section. These issues have been identified in an EEO complaint and dismissed by
the EEO office. G.L. indicated that when appellant raised those issues, each supervisor at all
levels in her chain of command looked into the situation and determined a hostile environment
was not present.
G.L. affirmed that two incidents had occurred of a coworker spraying of air freshener to
negate a very aromatic medical cream appellant was using and writing “Gonna move! Gonna
move! Gonna move!” Appellant was temporarily detailed to a different section and the
individuals involved were verbally counseled by the immediate supervisor, which was felt to be
an appropriate form of discipline by the unit’s leadership. However, each time a supervisor
refused to take the issue any further, appellant then claimed that the supervisors were creating a
hostile work environment. G.L. noted that when the allegations were turned over to him and the
commander (after they both thoroughly looked into all of her claims and found no grounds for
discrimination or a hostile work environment), appellant began claiming health issues related to a
hostile work environment and began filing Family Medical Leave Act (FMLA) claims.

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G.L. stated that appellant was reassigned outside the squadron after everything within
management’s power was done to provide her with reasonable accommodations and try to
reduce her reported stress levels.
M.B. and G.L. indicated that appellant had alleged 24 incidents involving her coworkers
and supervisors in the Material Acquisition section and had filed EEO complaints regarding
these incidents. Of the 24 alleged incidents, 23 were dismissed. The rate of pay issue was being
investigated by an outside agency. M.B. and G.L. noted that appellant had had issues with eight
of her nine supervisors (leadership) in her chain of command since being hired to work. The one
exception was a civilian supervisor from November 7, 2013 to February 14, 2014, who was
recently dismissed for poor performance.
An excerpt from a document from the Chief of Civilian Personnel noted that appellant
was reasonably accommodated four months after she was hired in November 2010 until the
present and noted various positions appellant held as a reasonable accommodation.
M.B. and G.L. indicated that from March 31, 2013 to the present, there were no staffing
shortages which affected appellant’s work load. They noted that, as of June 3, 2013, appellant
had been detailed as part of her request for reasonable accommodation. Appellant was able to
perform all duties as assigned while detailed. However, after both reasonable accommodation
details were complete, appellant filed for FMLA for stress when asked to return to her normal
duties, even though reasonable accommodations were made to provide her with an alternate
work location. They noted that appellant had documented poor performance while assigned to
Housing Element operation and took 3 months to complete a task which was expected to take
approximately 30 days to complete. They noted that appellant was given an oral admonishment
for inappropriate conduct (for unwanted physical touching) on February 19, 2014, a letter of
counseling for disruptive conductive (for engaging coworkers in time consuming conversations
about complaints over working in Material Acquisition) on February 19, 2014, and a notice of
proposed suspension (for threatening behavior towards her supervisors, discourteousness,
insubordination, and disruptive behavior) on March 13, 2014. A copy of all documents were
submitted along with supporting documentation.
In a May 13, 2014 letter, Win Winsor, M.A., L.P.C. indicated that appellant had anxious
arousal, depression, intrusive experiences, defensive avoidance and dissociation, and was
experiencing acute trauma related in part to the work environment in which she was subjected to
emotional, physical, and mental abuse.
By decision dated July 31, 2014, OWCP denied appellant’s claim, finding that she had
not identified any compensable factors of employment.
LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric

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disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition
is causally related to the identified compensable employment factors.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’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
compensable.3 Disability is not compensable, however, 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 hold a particular position.4
An employee’s emotional reaction to administrative or personnel matters generally falls
outside the scope of FECA.5 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.6 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities,
such action will be considered a compensable employment factor.7
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting his or her allegations with
probative and reliable evidence.8 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter, OWCP must base its
decision on an analysis of the medical evidence.9
A claimant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that an emotional condition was caused or adversely affected by his or her
employment.10 Nether the fact that a disease or condition manifests itself during a period of

2

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

3

Pamela D. Casey, 57 ECAB 260, 263 (2005).

4

Lillian Cutler, 28 ECAB 125, 129 (1976).

5

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

6

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

7

Id.

8

See supra note 2.

9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
10

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

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employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.11
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim because she
had failed to establish any compensable employment factors. The Board must, thus, initially
review whether these alleged incidents and conditions of employment are covered employment
factors under the terms of FECA. The Board notes that appellant’s allegations do not pertain to
her regular or specially assigned duties under Cutler.12 Rather, appellant has alleged error and
abuse in administrative matters and harassment and discrimination on the part of her supervisors.
Appellant made several allegations pertaining to managerial action, which she supported
in numerous e-mails of record, which she believed were harassing or discriminatory in nature.
These included that L.R. had instructed her on December 13, 2013 to bring in a doctor’s note for
her over-the-counter anti-pain cream and suggested that she purchase one that did not have such
a strong menthol scent; that on February 14, 2013 she was told by L.R. that she was not among
the staff members chosen to perform inventory after she was followed to the warehouse by a
coworker; that on February 28, 2013 L.R. instructed her on who she was allowed to speak to and
contact regarding work-related issues and directed her to send all outgoing e-mails for prior
approval before e-mailing the recipients; that on March 4, 2013 L.R. reminded her not to send
e-mails without her prior review and approval; on March 6, 2013 L.R. issued a letter of
admonishment in front of D.S.; and that on March 21, 2013 L.R. instructed her to cease
performing tasks she had previously directed her to perform. The record also reflects that on
January 21, 2014 appellant was informed that she was being transferred but she was notified on
March 4, 2014 that she would return to work under the supervision of L.R., but from a different
location. Appellant alleged a stress reaction to this news.
The assignment of work and monitoring of performance are administrative functions of a
supervisor.13 The manner in which a supervisor exercises his or her discretion falls outside
FECA’s coverage. This principle recognizes that supervisors must be allowed to perform their
duties, and at times employees will disagree with their supervisor’s actions. Mere dislike or
disagreement with certain supervisory actions will not be compensable absent error or abuse on
the part of the supervisor.14 While appellant may not have liked changes to her work
assignments, unit assignments, or work flow; or direction from her supervisor regarding her use
of over-the-counter anti-pain cream, there is no evidence of any error or abuse on management’s
part.

11

See Ronald K. Jablanski, 56 ECAB 616 (2005); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

12

Supra note 4.

13

Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 416 (2004); supra note
10 at 270 (2004).
14

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

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Appellant submitted various e-mails and letters in which she provided additional details
about her claims of employing establishment wrongdoing in administrative and personnel
matters, but she did not submit corroborating evidence to support the assertions contained in
these documents. Furthermore, the employing establishment indicated that it had thoroughly
investigated all of appellant’s claims and found no grounds for discrimination or a hostile work
environment. Appellant has not submitted any evidence or arguments to suggest that the
employing establishment’s investigation or actions were unreasonable or in error. Thus, these
allegations are not compensable.15
The remaining alleged employment incidents are also administrative in nature. As such,
appellant must demonstrate error or abuse on the part of her employing establishment in order
for those administrative matters to be compensable under FECA.16
Appellant asserted that she had notified B.K. on February 12, 2013 of her fall in the
parking lot at work and mentioned that L.R. had an issue with the anti-pain cream she was using;
however, B.K. did not respond. She also asserted that she informed L.R. and B.K. that she was
out on sick leave due to hostile working conditions, but her concerns were not addressed. An
employee’s frustration from not being permitted to work in a particular environment is not
compensable.17 While appellant may have desired a response from management, she has not
submitted any evidence of error or abuse on management’s part in not responding. Thus, she has
not established a compensable work factor.
Appellant felt it was hostile of her coworker and office mate, R.J., to have built a wall
around his desk in their two-person office while she was off work for shoulder surgery. The
employing establishment indicated that the minor issues appellant had with other employees and
her supervisor within the Material Acquisition section were identified in an EEO complaint and
subsequently dismissed by the EEO office. Appellant has presented no evidence showing error
or abuse on management’s part. While she may not have been happy with her coworker’s action,
any stress or anxiety she may have experienced is considered self-generated and not
compensable.
The record indicates that on May 28, 2014 R.M. sprayed their work area with aerosol
(bathroom) spray because of the menthol scent of her anti-pain cream. The employing
establishment indicated in their July 21, 2014 response that the responsible individual was
verbally counseled by their immediate supervisor, which was felt to be an appropriate form of
discipline by the unit’s leadership. While appellant may have desired a different outcome, she
has presented no evidence showing error or abuse on management’s part. Thus, any stress or
anxiety she may have experienced is considered self-generated and not compensable.
Appellant asserted at the end of May/June 2013, L.J. had written the words: “Gonna
move! Gonna move! Gonna move!” on a dry erase board next to her name. While the employing
15

See D.F., Docket No. 13-2036 (issued February 26, 2014).

16

Supra note 6 at 268 (2005).

17

Supra note 4.

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establishment validated this occurrence in their July 21, 2014 statement, L.J. stated in his EEO
response that he did not write this to intimidate appellant. The employing establishment
indicated that the responsible individual was verbally counseled by their immediate supervisor,
which was felt to be an appropriate form of discipline by the unit’s leadership. The employing
establishment also noted that this incident was alleged in the EEO complaint, which was
dismissed except for the pay rate issue. Verbal altercations and difficult relationships with
supervisors/managers/coworkers, when sufficiently detailed and supported by the record, may
constitute compensable factors of employment.18 However, this does not imply that every
ostensibly abusive or threatening statement uttered in the workplace will give rise to coverage
under FECA.19 For appellant to prevail on her claim, she must support her allegations with
probative and reliable evidence.20 Appellant however did not submit sufficient evidence to show
that management acted in an abusive, erroneous, or improper manner in dealing with L.J. Thus,
any stress or anxiety she may have experienced is considered self-generated and not
compensable.
Appellant also alleged a pattern of harassment and discrimination, and that the aboveaccepted incidents constituted discrimination on the basis of race or disability. For harassment
or discrimination to give rise to a compensable disability under FECA, there must be probative
and reliable evidence that harassment or discrimination did in fact occur.21 Mere perceptions of
harassment, retaliation, or discrimination are not compensable under FECA.22 While OWCP
accepted the pain crème and dry erase board incidents as having occurred, there is insufficient
evidence that those incidents rose to such a level to constitute discrimination or a pattern of
harassment. Therefore, the Board finds that appellant did not establish her allegations of
harassment and discrimination as factual.
Appellant also claimed several other incidents which OWCP found did not occur. These
include allegations that L.R. told her she did not have to select appellant for a vacant GS-6
supply technician position when it became available; that appellant was not being paid for doing
above-grade work from April 2011 to January 2013; that on February 6, 2013 L.R. demanded
and snatched cabinet keys from appellant; that on February 13, 2013 L.R. belittled appellant by
saying she “grunts” in a meeting; that L.R. told appellant on February 6, 22, and 29, 2013 to
“find another job if you don’t’ like it here,” that the February 29, 2014 oral admonishment from
G.L. for inappropriate conduct and unwanted physical touching was retaliation for having filed
an EEO complaint against management; that the proposed suspension on March 13, 2014 was an
intentionally fabricated lie; and that G.L. and M.B. intentionally, knowingly and with malice
provided false answers and false statements pertaining to her work injury claim.

18

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

19

Fred Faber, 52 ECAB 107, 109 (2000).

20

Supra note 2.

21

Marlon Vera, 54 ECAB 834 (2003).

22

Kim Nguyen, 53 ECAB 127 (2001).

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The Board finds that appellant did not submit sufficient evidence to establish that she was
harassed or discriminated against by her supervisors. While appellant’s statements and e-mails
supported her allegations, she provided no corroborating evidence, such as witness statements, to
establish that the statements actually were made or that the actions actually occurred.23 The
employing establishment noted that there was an ongoing EEO investigation on the subject of
appellant’s pay, but all other allegations were dismissed. It also stated that it had thoroughly
investigated appellant’s claims and found no grounds for discrimination, a hostile work
environment, etc.
The employing establishment provided a detailed history of the
counseling/conduct actions taken and the basis for those actions. It noted that appellant’s
emotional breakdowns appeared to coincide with appropriate corrective actions. There is
insufficient evidence to support these allegations occurred or any other evidence to collaborate
appellant’s allegations that the events occurred as alleged. Although appellant sought redress
from the EEO Commission, she produced no final decision or finding by that body that would
lend support to her charges of harassment, retaliation, discrimination, or any error or abuse
pertaining to administrative or personnel matters.24 Thus, appellant has not established a
compensable factor in this regard.
Because appellant failed to establish a compensable factor of employment, OWCP
properly denied the claim without addressing the medical evidence of record.25
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.26
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

23

David W. Shirey, 42 ECAB 783, 795-96 (1991); supra note 2; Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

24

See R.B., Docket No. 15-257 (issued May 7, 2015).

25

Garry M. Carlo, supra note 9.

26

See 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

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ORDER
IT IS HEREBY ORDERED THAT the July 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, MOULTON POST
OFFICE, Moulton, AL, Employer
__________________________________________

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

Docket No. 21-0419
Issued: October 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 28, 2021 appellant filed a timely appeal from a December 17, 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 17, 2020 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
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On June 8, 2015 appellant, then a 39-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 1, 2015 she injured her lower back when lifting a large, heavy
parcel while in the performance of duty. She stopped work on June 5, 2015 and returned the next
day. OWCP initially accepted the claim for lumbar sprain (right side). It subsequently accepted
a permanent aggravation of L5-S1 herniated disc. OWCP paid all appropriate compensation and
authorized an August 31, 2017 anterior lumbar discectomy and fusion L5-S1. Appellant returned
to full-time full-duty work on May 4, 2019.
On November 26, 2019 appellant filed a claim for compensation (Form CA-7) for a
schedule award.
By decision dated June 1, 2020, OWCP denied appellant’s schedule award claim, finding
that the evidence of record was insufficient to establish permanent impairment of a scheduled
member or function of the body.
On June 24, 2020 appellant requested a hearing before a representative of OWCP’s Branch
of Hearings and Review.
Following a preliminary review, by decision dated September 1, 2020, an OWCP hearing
representative found that the case was not in posture for a hearing and vacated OWCP’s June 1,
2020 decision denying appellant’s schedule award claim. The hearing representative remanded
the case for OWCP to refer appellant, together with a statement of accepted facts (SOAF) and the
medical record, to an appropriate Board-certified specialist for a permanent impairment evaluation
in conformance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)3 and The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
a supplemental publication of the sixth edition of the A.M.A., Guides. Following any further
development deemed necessary, OWCP was to issue a de novo decision.
OWCP referred appellant, an updated SOAF dated September 9, 2020, the medical record,
and a list of questions, to Dr. Curt L. Freudenberger, a Board-certified orthopedic surgeon, for a
second opinion evaluation to determine whether her work-related condition resulted in permanent
impairment thereby warranting a schedule award.
In an October 14, 2020 report, Dr. Freudenberger discussed appellant’s factual and medical
history, reviewed the SOAF and the medical record, and reported the findings of his physical
examination of appellant. He advised that she was status post single-level lumbar fusion with a
resolved or nonverifiable radiculopathy. Dr. Freudenberger advised that appellant’s principle
complaint was consistent with a single-level fusion of low back pain with mild guarded range of
motion. On physical examination, he noted that she had full range of motion. With regard to
appellant’s lower extremities, Dr. Freudenberger indicated that she had a nonverifiable waxing and
waning L5 versus S1 distribution radiculopathy. However, on examination, appellant had
excellent strength, was able to toe-and-heel walk, preserved deep tendon reflexes, and a negative
3

A.M.A., Guides (6 th ed. 2009).

2

straight leg raise test. Dr. Freudenberger also related that there was no evidence of any persistent
motor or sensory deficits. He opined that any concerns regarding a lower extremity component
appeared to have resolved over the course of treatment and that any clinical complaints were either
minimal to nonexistent versus nonverifiable. Dr. Freudenberger opined that appellant had five
percent whole person permanent impairment based on the diagnosed-based impairment
methodology under the A.M.A., Guides, Table 17-4, Grade A, for status post single-level
procedure with resolved radiculopathy. He further opined that The Guides Newsletter was not
applicable as she had a full resolution of radiculopathy. In an October 20, 2019 lower extremity
permanent impairment worksheet, Dr. Freudenberger opined that appellant reached maximum
medical improvement (MMI) on October 20, 2020. He also opined that she had five percent
permanent impairment under Table 17-4 for single level fusion.
OWCP referred appellant’s case to Dr. Michael M. Katz, a Board-certified orthopedic
surgeon serving as an OWCP district medical adviser (DMA). In a December 9, 2020 report,
Dr. Katz reviewed the SOAF and the medical record, including Dr. Freudenberger’s report. He
opined that appellant reached MMI on October 14, 2020 the date of Dr. Freudenberger’s
impairment evaluation. Dr. Katz noted that FECA did not allow a schedule award for the spine,
nor did it recognize whole person impairment for spinal conditions. Rather, spinal nerve injury
was determined under The Guides Newsletter of. Dr. Katz noted that Dr. Freudenberger, in his
evaluation, determined that there were no motor or sensory deficits in either lower extremity.
Based on Dr. Freudenberger’s evaluation findings, Dr. Katz found that there was no ratable
impairment of any spinal nerve and thus no ratable impairment under FECA for the accepted spinal
conditions. Under Proposed Table Two of The Guides Newsletter, he indicated that appellant had
no motor deficit and no sensory deficit for spinal nerves L3 through S1, which resulted in Class 0
or 0 percent permanent impairment of both lower extremities. Dr. Katz also noted that the A.M.A.,
Guides did not allow for an alternative range of motion impairment calculation based on the key
diagnostic factors for the accepted conditions.
By decision dated December 17, 2020, OWCP denied appellant’s schedule award claim,
finding that she had not established permanent impairment of a scheduled member or function of
the body, warranting a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations 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 o f the body. 4 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 5 As of May 1, 2009, schedule awards are determined in

4

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

5

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

accordance with the sixth edition of the A.M.A., Guides (2009).6 The Board has approved the use
by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 7
Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole. 8 Furthermore, the back is specifically excluded
from the definition of organ under FECA. 9 The sixth edition of the A.M.A., Guides does not
provide a separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that, FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities resulting
from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter is to be applied.10
The Board has recognized the adoption of this methodology for rating extremity impairment,
including the use of The Guides Newsletter, as proper in order to provide a uniform standard
applicable to each claimant for a schedule award for extremity impairment originating in the
spine.11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a (March 2017).
7

J.C., Docket No. 20-1071 (issued January 4, 2021); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
8

K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59
ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
9

See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).
10

Supra note 6 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

11

J.C., supra note 7; E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued
February 18, 2014).
12

Supra note 6 at Chapter 2.808.6(f) (March 2017).

4

In his October 14, 2020 report, Dr. Freudenberger opined that appellant had five percent
whole person impairment under Table 17-4 of the A.M.A., Guides. As noted, neither FECA nor
its regulations provide for a schedule award for impairment to the back or to the body as a whole. 13
Dr. Freudenberger also opined that appellant did not have an impairment under The Guides
Newsletter as she had a full resolution of her radiculopathy. Based on Dr. Freudenberger’s
evaluation findings, Dr. Katz found that there was no ratable impairment of any spinal nerve for
either motor or sensory defect and thus no ratable impairment under FECA for the accepted
conditions. Under Proposed Table Two of The Guides Newsletter, he explained that spinal nerves
L3 through S1 had no motor or sensory deficits therefore appellant had Class 0 or 0 percent
permanent impairment of the lower extremities. The Board finds that the DMA properly used
Dr. Freudenberger’s findings and provided an explanation in conformance with the A.M.A.,
Guides and The Guides Newsletter, that she had no permanent impairment of her lower extremities
due to either a motor or sensory deficit of the L3-S1 spinal nerves.14
As appellant has not submitted medical evidence in conformance with either the A.M.A.,
Guides or The Guides Newsletter, to support a permanent impairment of her lower extremities, the
Board finds that she has not met her burden of proof to establish her claim for a schedule award. 15
Appellant may request a schedule award or increased schedule award at any time based on
evidence of new exposure, or medical evidence showing a progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.

13

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see R.B., Docket No. 19-0848 (issued February 11, 2020);
C.S., Docket No. 19-0851 (issued November 18, 2019).
14

Id.

15

See R.B., supra note 13.

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1372
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 28, 2021 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 established right plantar fasciitis causally related to the
accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 28, 2021 OWCP decision, appellant submitted additional evidence to
the Board. 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 additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 19, 2021 appellant, then a 52-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed plantar fasciitis due to factors of his federal
employment, including wearing ice grippers on his feet to deliver mail during two to three weeks
of icy conditions. He reported worsening pain and soreness in the sole of his right foot, near his
heel, which persisted even after he stopped wearing the ice grippers. Appellant reported that he
first became aware of his condition and its relation to his federal employment on
February 18, 2021. He explained that he delayed filing his claim because he hoped the pain would
go away after he stopped wearing the ice grippers. On the reverse side of the claim form,
appellant’s supervisor indicated that appellant first reported his condition on March 31, 2021 and
was last exposed to the conditions alleged to have caused his condition on April 1, 2021.
In support of his claim, appellant submitted a duty status report (Form CA-17) dated
March 30, 2021, bearing an illegible signature. The provider diagnosed plantar fasciitis and
recommended work restrictions limiting appellant’s standing, walking, climbing, kneeling,
bending, stooping, twisting, pulling, and pushing.
In a development letter dated April 27, 2021, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
Appellant subsequently submitted an April 26, 2021 medical report from Dr. Steven Fish,
a Board-certified orthopedic surgeon, relating appellant’s history of injury and treatment. Dr. Fish
noted that appellant had been having difficulties with his right heel since February 18, 2021 as a
result of walking on ice with ice scrapers on his shoes. His examination revealed-moderate
bilateral pes planus, fullness along the medial aspect of the right plantar heel, tenderness along the
plantar aspect of the heel at the insertion of the plantar fascia, and occasional pain radiating distally
along the plantar fascia. Dr. Fish reviewed previous x-rays, which revealed-moderate mid-foot
arthritis and some degree of pes planus. He diagnosed plantar fascial fibromatosis and bilateral
pes planus and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose him to this, but this started while
[appellant] was at work.” Dr. Fish prescribed custom orthotics, recommended physical therapy,
and advised that appellant should be off work for one week to rest before returning with
restrictions. In a disability certificate of even date, he advised that appellant was 100 percent
disabled from work from April 27 through May 4, 2021, after which he could return to work with
restrictions. In a Form CA-17 of even date, Dr. Fish related appellant’s history of injury and
diagnosed plantar fasciitis. He advised that appellant could return to work on May 4, 2021 with
restrictions.
On May 12, 2021 appellant responded to OWCP’s development questionnaire, relating that
he had worked as a full-time mail carrier for 15 years, walking 8 to 10 miles each day, and that he
believed that walking on icy sidewalks using ice grippers caused his claimed condition. He
explained that it was icy for two to three weeks and he wore his ice grippers while delivering mail
during most of that time. Appellant began to feel pain while working on or around

2

February 18, 2021. The pain was constant, but fluctuated in severity, worsening with walking and
improving with daily foot soaks and ice. Appellant clarified that he did not stop working on
April 1, 2021. He indicated that he did not have any exposure that could have caused the condition
outside of his federal employment and had no other conditions affecting his foot.
In a May 14, 2021 letter, an employing establishment human resource management (HRM)
specialist, noted that appellant did not stop working on March 30, 2021, but rather was working
with restrictions. The HRM specialist reported that appellant was out of work from April 27
through May 4, 2021 and returned to work on May 5, 2021 with restrictions.
Appellant submitted an additional statement, dated May 23, 2021, providing further
information about his employment duties, including walking 5 to 7 hours each day delivering mail
and parcels, totaling over 20,000 miles during his roughly 15 years of federal employment. He
explained that the employing establishment authorized and issued “ice grippers,” adaptive wear
worn over boots with screws on the bottom to provide traction and minimize slips and falls on icy
sidewalks. Appellant described how, during the two to three weeks of icy conditions, each time
he stepped out of his truck on the right side, his right foot/heel was the first thing that touched the
ground in order to secure good traction with the ice grippers while dismounting. He opined that
“[a]s the screws hit the ice and get traction, some reverse energy or force, I’m sure will go to your
feet and body.” Appellant’s pain began in the bottom of his right foot while wearing the ice
grippers and gradually worsened over time as he walked. On March 30, 2021 the pain was so
severe that he could not finish work and he sought treatment at an urgent care facility. The pain
did not improve when appellant stopped wearing the ice grippers. In the last five years, he had not
participated in any strenuous activities outside of his work, only household chores.
By decision dated May 28, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that his medical condition was
causally related to the accepted factors of his federal employment.
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).

3

To establish that an injury was sustained in the perf ormance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.
In his April 26, 2021 report, Dr. Fish noted that appellant began to experience plantar heel
pain as a result of walking on ice with ice scrapers on h is shoes. He diagnosed plantar fascial
fibromatosis and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose [appellant] to this, but this started
while [appellant] was at work.” While Dr. Fish provided an affirmative opinion suggestive of
causal relationship, he did not offer medical rationale sufficient to explain how appellant’s
employment duties resulted in or contributed to his diagnosed condition. Without explaining how

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
G.T., Docket No. 21-0170 (issued September 29, 2021); D.W., Docket No. 20-0674 (issued September 29, 2020);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

4

appellant’s employment duties caused or aggravated his condition, Dr. Fish’s report is of limited
probative value and is insufficient to meet appellant’s burden of proof. 11
In a Form CA-17 dated April 26, 2021, Dr. Fish diagnosed plantar fasciitis and described
appellant’s work restrictions. Similarly, in a disability certificate of even date , he described
appellant’s disability status. However, neither the Form CA-17, nor the disability certificate
offered an opinion on causal relationship. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship. 12 For these reasons, Dr. Fish’s remaining evidence is insufficient to
meet appellant’s burden of proof.
Appellant submitted a Form CA-17, dated March 30, 2021, bearing an illegible signature.
The Board has held that reports that are unsigned or bear an illegible signature cannot be
considered probative medical evidence as the author cannot be identified as a physician. 13
Therefore, this report is also of no probative value and is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that his right
plantar fasciitis is causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request fo r reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
CLEMENT J. ZABLOCKI MEDICAL CENTER, )
Milwaukee, WI, Employer
)
__________________________________________ )
D.P., Appellant

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

Docket No. 10-1375
Issued: March 24, 2011

Case Submitted on the Record

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

JURISDICTION
On April 22, 2010 appellant, through her representative, filed a timely appeal from the
December 29, 2009 merit decision of the Office of Workers’ Compensation Programs which
denied her emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On April 22, 2009 appellant, then a 42-year-old health technician, filed an occupational
disease claim alleging that she developed an emotional condition as a result of her workers’
compensation claim and unfair treatment. She was not working in the department in which she
was hired but was transferred to the eye clinic to accommodate her restrictions under claim File

No. xxxxxx519. Several coworkers stated that appellant did not belong in the urology
department so she was transferred to the eye clinic and she felt as though she did not belong
there either. Appellant asserted that she worked hard wherever she was assigned. She no longer
had access to rooms and supplies that she once had or involved in meetings in her prior
department or the eye clinic. Appellant did not stop work.
On April 30, 2009 the Office asked appellant and the employing establishment to provide
additional evidence.
Appellant submitted a May 12, 2009 note from Dr. Russ Temme, a Board-certified
psychiatrist, who excused her from work until May 18, 2009 due to an illness and treatment.
Reports from Dr. Herbert C. Roehrich, a Board-certified psychiatrist, dated June 1 to July 28,
2009 noted that appellant was treated for stress from February 10 to 12, 2009 and from May 5
to 12, 2009. Appellant submitted treatment notes for her admission on these dates and copies of
her prescription bottles.
In a May 14, 2009 letter, Kris Stephens, a supervisor, informed appellant that she had
been absent from her position for the prior two weeks, had not returned to work or requested
leave and had not provided medical documentation in support of her absence. She advised
appellant that she was considered absent without leave (AWOL) and directed her to return to
work on her next regularly scheduled shift or to request leave and provide valid medical
documentation to support her continued absence. If appellant provided valid medical
documentation in a timely manner, her AWOL would be converted to approve leave without pay.
She noted on the bottom of the letter “hostile work environment continues my stress and
depression.” Appellant submitted copies of her work schedule from April 26 to June 6, 2009.
The employing establishment submitted a June 18, 2009 statement from Darla Johnson, a
workers’ compensation specialist, responding to appellant’s allegations. Ms. Johnson noted that
appellant filed a traumatic injury claim, File No. xxxxxx519, and was off of work for an
extended period. While that claim was developed, appellant was not compensated and she
alleged this caused stress. Her claim was subsequently accepted and she was paid for lost wages.
Regarding appellant’s allegation that she was treated unfairly due to her workers’ compensation
claim, Ms. Johnson contended that there was no evidence of this as appellant provided no
witness statements to corroborate her allegations nor was the employer aware of any witnesses to
unfair treatment. In response to appellant’s assertion of stress from not working in the
department for which she was hired, Ms. Johnson advised that appellant was presently not
working in her permanent assigned work area due to accommodating her temporary physical
limitations under claim File No. xxxxxx519. With regards to appellant’s statement that she had
always been a hard worker, she noted that no one questioned appellant’s work ethic. As to
whether appellant no longer had access to rooms or supplies, Ms. Johnson stated that appellant
was not issued keys to the eye clinic rooms or supply closets because only permanently assigned
employees were issued keys to those areas. As to whether she was involved in meetings in her
former department or at the eye clinic, appellant was not required to attend meetings due to her
temporary status as only permanent employees were required to attend. Appellant was only
temporarily assigned to work in that area. As to whether she was involved in meetings in her
former department or at the eye clinic, appellant was not required to attend meetings due to her
temporary status as only permanent employees were required to attend.

2

In a decision dated August 5, 2009, the Office denied appellant’s claim finding that the
claimed emotional condition did not arise in the performance of duty.
On August 13, 2009 appellant requested a telephonic oral hearing which was held on
November 4, 2009. She submitted reports from Dr. Roehrich dated July 22 to August 19, 2009
for treatment of stress which developed after she returned to work following an injury. It was
noted that appellant transferred to another department. At the hearing, appellant testified that she
felt underutilized in her temporary reassignment and that her coworkers had “an attitude.”
In a December 29, 2009 decision, an Office hearing representative affirmed the August 5,
2009 decision. She found that appellant failed to establish any compensable employment factor.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.1
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his or her regular or specifically assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.3
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.4 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the

1

George H. Clark, 56 ECAB 162 (2004).

2

5 U.S.C. §§ 8101-8193.

3

See Lillian Cutler, 28 ECAB 126 (1976).

4

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

3

matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.5
ANALYSIS
Appellant alleged an emotional condition as a result of being harassed, unfair treatment
and being transferred to another department. The Board must thus, initially review whether these
alleged incidents and conditions of employment are compensable employment factors under the
terms of the Act. Appellant has not attributed her emotional condition to the regular or specially
assigned duties of her position as a health technician. Therefore, she has not alleged a
compensable factor under Cutler.6
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,7 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment are not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board held, however, that coverage under the
Act would attach if the factual circumstances surrounding the administrative or personnel action
established error or abuse by the employer in dealing with the claimant. Absent evidence of such
error or abuse, the resulting emotional condition must be considered self-generated and not
employment related. In determining whether the employer erred or acted abusively, the Board
has examined whether the employing establishment acted reasonably.8
Appellant alleged that she was not working in the department in which she was hired but
was transferred from urology to the eye clinic to accommodate her restrictions under a separate
workers’ compensation claim. She alleged that coworkers stated that she did not belong in the
urology department so she was transferred to the eye clinic where she also felt she did not
belong. Matters relating to transfers and staffing assignments are administrative functions that
are not compensable factors of employment under the Act. Absent error or abuse, as they do not
involve the employee’s ability to perform her regular or specially assigned work duties but rather
constitute her desire to work in a different position or location.9 The Board notes that matters
related to the processing of compensation claims bear no relation to day-to-day or specially
assigned duties and are an administrative function of the employer and not a duty of the
employee.10 Appellant has not established a compensable factor of employment in these matters.
Ms. Johnson explained that appellant was not working in her permanent assigned work area as
the employer was accommodating her temporary physical limitations due to an accepted injury
in claim File No. xxxxxx519. The employer provided a reasonable explanation regarding
5

Id.

6

See supra note 3.

7

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

8

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

9

Id.; see also Peter D. Butt, Jr., 56 ECAB 117 (2004).

10

David C. Lindsey, Jr., 56 ECAB 268 (2005).

4

appellant’s temporary work assignment. Appellant presented insufficient evidence to establish
that her employer acted unreasonably with regards to her transfer and the work assignments
made to accommodate her work restrictions.
Appellant alleged that she no longer had access to certain rooms and supplies or was
involved in meetings at her prior department or the eye clinic. The assignment of work is an
administrative function.11 The manner in which a supervisor exercises his or her discretion falls
outside the ambit of the Act. Absent evidence of error or abuse, appellant’s mere disagreement
or dislike of a managerial action is not compensable.12 The Board finds that she did not present
sufficient evidence to establish error or abuse regarding her work assignments. The evidence
does not establish that the employing establishment acted unreasonably. Ms. Johnson explained
that appellant was not issued keys to the eye clinic rooms or supply closets because these were
reserved for permanent employees and appellant was on a temporary assignment. She also noted
that appellant was not required to attend meetings as only permanent employees were so
required. There is no evidence to substantiate that the employer acted unreasonably in these
matters. Appellant has not established administrative error or abuse in these matters and her
allegations are not compensable under the Act.
Appellant generally asserted that she was a hard worker and felt stress from being
underutilized. As noted, the manner in which a supervisor performs duties as a supervisor or the
manner in which a supervisor exercises supervisory discretion fall, as a rule, outside the scope of
coverage provided by the Act. The Board has also held that an employee’s dissatisfaction with
holding a position in which she feels underutilized or holding a position which she feels to be
unchallenging or uninteresting is not compensable but constitutes frustration from not being
permitted to work in a particular environment or to hold a particular position.13 As noted,
appellant did not submit evidence to establish that the employer acted unreasonably.
The May 14, 2009 letter from Ms. Stephens, a supervisor, advised appellant that she
would be considered AWOL unless she provided medical documentation of her disability for
work. Appellant cited this as evidence of a hostile work environment. The Board has held that
matters regarding the use of leave are generally not considered compensable factors of
employment as they are administrative functions of the employer and not duties of the
employee.14 This allegation is unrelated to appellant’s regular or specially assigned work duties.
The letter of Ms. Stephens does not establish error on the part of the employer in advising
appellant of the deficiency in medical documentation to support her absence from work.
Appellant did not establish a compensable work factor in this matter.

11

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

12

See Barbara J. Latham, 53 ECAB 316 (2002); see also Peter D. Butt, Jr., supra note 9 (allegations such as
improperly assigned work duties, which relate to administrative or personnel matters, unrelated to the employee’s
regular or specially assigned work duties do not fall within the coverage of the Act).
13

Peter D. Butt, Jr., id.

14

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

5

Appellant generally alleged that she was treated unfairly and harassed by management
and co-workers. To the extent that incidents alleged as constituting harassment by a supervisor
are established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors.15 However, for harassment to give rise to a compensable
disability under the Act, there must be evidence that harassment did in fact occur. Mere
perceptions of harassment are not compensable under the Act.16 The factual evidence fails to
support appellant’s allegations. The record does not document that she was harassed. Appellant
cited no specific instances of harassment occurring at a particular time, place or manner rather
she made general allegations. The Board finds that the evidence is insufficient to establish that
she was harassed by her supervisor or coworkers. Consequently, appellant has not established
her claim for an emotional condition.17
CONCLUSION
The Board finds that appellant did not sustain an emotional condition in the performance
of duty.

15

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

16

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).
17

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

6

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2011
Washington, DC

Richard J. Daschbach, 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
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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

Docket No. 17-1494
Issued: November 2, 2017

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 June 26, 2017 appellant filed a timely appeal from a May 18, 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.
ISSUE
The issue is whether appellant met her burden of proof to establish a left knee injury due
to the accepted January 18, 2017 employment incident.
FACTUAL HISTORY
On February 4, 2017 appellant, then a 34-year-old mail handler assistant, filed a
traumatic injury claim (Form CA-1) alleging that she sustained a left knee injury on
January 18, 2017. She indicated that she felt a pop in her left knee while she was splitting mail
1

5 U.S.C. § 8101 et seq.

on that date.2 Appellant stopped work on February 11, 2017 and received continuation of pay
beginning on that date.
In a February 10, 2017 report, Dr. Robert M. Hartley, an attending Board-certified
internist and rheumatologist, indicated that appellant presented with knee pain on that date. He
listed her vital signs and ordered a magnetic resonance imaging (MRI) scan of her left knee.
In a February 10, 2014 duty status report (Form CA-17), Dr. Hartley listed the date of
injury as January 18, 2017 and the mechanism of injury as “left knee popped while splitting
mail.” He listed the clinical findings as acute pain and contracture of the left knee and diagnosed
acute left knee pain due to injury. Dr. Hartley indicated that appellant could not return to her
regular work.
A February 18, 2017 MRI scan of appellant’s left knee contained an impression of large
unstable osteochondral defect of the lateral aspect of the central/posterior weightbearing aspect
of the medial femoral condyle.
Appellant also submitted a February 22, 2017 report in which Courtney Van Arsdale, an
attending physician assistant, discussed her left knee condition. In reports dated February 28 and
March 8, 2017, Eric Getkin, an attending physical therapist, detailed the physical therapy
sessions appellant underwent for her left knee condition on those dates.
In a March 22, 2017 letter, OWCP requested that appellant submit additional medical
evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to whether and specifically how the alleged work incident on January 18, 2017
caused or aggravated a medical condition. It asked appellant to complete and return a claim
development questionnaire which posed questions about how the claimed injury occurred and
why she delayed in reporting it to the employing establishment.
On April 10, 2017 OWCP received appellant’s responses to the questionnaire sent on
March 22, 2017. Appellant indicated that the task of splitting mail she performed on January 18,
2017 involved scanning and sorting sacks and trays of mail. She explained that the task required
kneeling and walking back and forth while carrying mail, and indicated that she felt a pop in her
left knee when she was walking and carrying a tray of mail on January 18, 2017. Appellant
noted that she did not immediately report the January 18, 2017 injury because it initially was not
severe in nature and she felt that it could be addressed through home treatment and wearing a
knee brace. She noted that she reported the claimed injury after her left knee became swollen.
In a February 22, 2017 attending physician’s report (Form CA-20), Dr. Andreas Gomoll,
an attending Board-certified orthopedic surgeon, listed the date of injury as January 18, 2017 and
diagnosed osteochondral defect of the left knee. He checked a box marked “Yes” in response to
a question regarding whether the diagnosed condition was caused or aggravated by an
employment activity. Dr. Gomoll indicated that appellant was totally disabled from February 22,
2017 until an undetermined date.
2

Appellant submitted a February 4, 2017 statement in which she provided a similar account of her claimed
January 18, 2017 employment injury.

2

In several reports dated between March 13 and May 1, 2017, Michelle Marino, an
attending physical therapist, detailed physical therapy sessions appellant underwent for her left
knee condition.
In a May 18, 2017 decision, OWCP denied appellant’s claim for a January 18, 2017
employment injury. It accepted the employment incident, in the form of performing mail sorting
duties, including walking while carrying mail on January 18, 2017, but found that appellant did
not submit sufficient medical evidence to establish a diagnosed medical condition causally
related to the accepted employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that is
alleged to have occurred.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
Certain health care providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.8
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.9
3

See supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

9

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

3

ANALYSIS
Appellant alleged that on January 18, 2017 she sustained a left knee injury at work. She
indicated that she felt a pop in her left knee while she was sorting mail on that date. In a May 18,
2017 decision, OWCP denied appellant’s claim for a January 18, 2017 employment injury. It
accepted the occurrence of an employment incident on January 18, 2017, in the form of
performing mail sorting duties, including walking while carrying mail, but found that appellant
did not submit sufficient medical evidence to establish that she sustained a diagnosed medical
condition causally related to the accepted employment incident.
The Board finds that appellant has not met her burden of proof to establish a left knee
injury causally related to the accepted employment incident.
Appellant submitted a February 10, 2014 duty status report in which Dr. Hartley, an
attending physician, listed the date of injury as January 18, 2017 and the mechanism of injury as
“left knee popped while splitting mail.” Dr. Hartley listed the clinical findings as acute pain and
contracture of the left knee diagnosed acute left knee pain. He indicated that appellant could not
return to her regular work. The Board finds that this report is of limited probative value on the
issue of causation because Dr. Hartley did not provide adequate medical rationale in support of
his conclusion. Dr. Hartley did not describe the January 18, 2017 employment incident in any
detail or provide a comprehensive description of appellant’s left knee condition, nor did he explain
how the January 18, 2017 employment incident caused or aggravated appellant’s left knee
condition. The Board has held that a medical report is of limited probative value on the issue of
causal relationship if it contains a conclusion regarding causal relationship which is unsupported
by medical rationale.10
In a February 22, 2017 Form CA-20, Dr. Gomoll, an attending physician, listed the date
of injury as January 18, 2017 and diagnosed osteochondral defect of the left knee.11 He checked
a box marked “Yes” in response to a question regarding whether the diagnosed condition was
caused or aggravated by an employment activity.12 The Board has held that when a physician’s
opinion on causal relationship consists only of checking “Yes” to a form question, without more by
the way of medical rationale, that opinion has little probative value and is insufficient to establish
causal relationship.13 Appellant’s burden of proof includes the necessity of furnishing an
affirmative opinion from a physician who supports his or her conclusion with sound medical
reasoning.14 As Dr. Gomoll did no more than check “Yes” to a form question, his opinion on
causal relationship is of little probative value and is insufficient to discharge appellant’s burden of
proof. He did not describe the January 18, 2017 employment incident in any detail or explain how
10

C.M., Docket No. 14-88 (issued April 18, 2014).

11

The record contains a February 18, 2017 MRI scan of appellant’s left knee which showed a large unstable
osteochondral defect of the lateral aspect of the central/posterior weightbearing aspect of the medial femoral
condyle.
12

Dr. Gomoll indicated that appellant was totally disabled from February 22, 2017 until an undetermined date.

13

Lillian M. Jones, 34 ECAB 379, 381 (1982).

14

Id.

4

it would have been competent to cause or aggravate the observed left knee osteochondral defect.
Dr. Gomoll’s report is of limited probative value on the relevant issue of this case because he did
not provide medical rationale explaining how the January 18, 2017 employment incident could
have caused or aggravated this left knee osteochondral defect.15
In a February 22, 2017 report, Ms. Van Arsdale, an attending physician assistant,
discussed appellant’s left knee condition. In several reports dated between February and
May 2017, Mr. Getkin and Ms. Marino, attending physical therapists, detailed physical therapy
sessions appellant underwent for her left knee condition. The Board notes that these reports are
of no probative value with respect to appellant’s claim for a January 18, 2017 employment injury
because physician assistants16 and physical therapists17 are not considered physicians under
FECA and their reports do not constitute probative medical evidence.18
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 a left knee
injury due to the accepted January 18, 2017 employment incident.

15

Y.D., Docket No. 16-1896 (issued February 10, 2017); D.R., Docket No. 16-0528 (issued August 24, 2016).

16

N.L., Docket No. 17-1202 (issued August 25, 2017) (physician assistants are not considered physicians under
FECA).
17

S.T., Docket No. 17-0913 (issued June 23, 2017) (physical therapists are not considered physicians under
FECA).
18

On appeal appellant contends that an attending physician advised her that all relevant medical evidence had
been submitted to the record. The Board notes that it has explained why the submitted medical evidence is not
sufficient to establish appellant’s claim for a January 18, 2017 employment injury.

5

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2017
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

6


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

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

Docket No. 12-958
Issued: November 7, 2012

Case Submitted on the Record

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

JURISDICTION
On March 26, 2012 appellant filed a timely appeal from a February 8, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim.
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 claim.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
back condition in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board may not consider such evidence on appeal as its
review is limited to evidence that was before OWCP at the time of its decision. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On November 29, 2011 appellant, then a 56-year-old manual flat processing clerk, filed
an occupational disease claim alleging that on November 19, 2010 she hurt her back while
picking up mail tubs. She indicated that she had a herniated disc which she was aware of since
January 2010 and that she realized that her back condition was caused or aggravated by her
employment on November 19, 2010. Appellant stopped work on November 22, 2010 and
returned to work on September 6, 2011.
With her claim, appellant submitted a November 7, 2011 narrative statement in which she
described her work duties and how she began feeling back pain beginning November 19, 2010.
Also provided was administrative information from a hospital and a December 6, 2010 magnetic
resonance imaging (MRI) scan of the lumbar spine, which indicated a small- to medium-sized
herniated disc at L4-5 and L5-S1.
In a December 8, 2011 letter, OWCP notified appellant that the information received was
insufficient to establish her claim. It asked her to have her physician submit a medical opinion
supported by a medical explanation as to how work activities caused or aggravated a medical
condition. Appellant was provided 30 days to submit the requested information. No further
evidence was received.
By decision dated February 8, 2012, OWCP denied appellant’s claim on the grounds that
fact of injury was not established. It found that the medical evidence failed to establish that the
herniated disc condition was caused by her work duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

See S.P., 59 ECAB 184, 188 (2007).

2

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.7
ANALYSIS
Appellant’s work duties are not in dispute and the record indicates that she picked up
mail tubs as part of her duties. However, she has not submitted medical evidence to establish
that picking up tubs of mail and other associated work duties caused a back injury or disability.
Appellant provided a December 6, 2010 MRI scan report which indicated disc
herniations but did not contain a physician’s opinion regarding the cause of the reported
condition. Thus, this diagnostic report is insufficient to establish her claim.8
As noted, part of appellant’s burden of proof includes the submission of medical evidence
addressing how her work duties caused or aggravated her claimed condition.9 On December 8,
2011 OWCP advised her of the type of medical evidence needed to establish her claim.
Appellant has not submitted a medical report in which a physician explains how particular work
duties caused or aggravated her disc herniations or other diagnosed back conditions.
Accordingly, OWCP properly denied her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.

6

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

7

I.J., 59 ECAB 408 (2008); Woodhams, supra note 4.

8

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
9

See supra notes 5, 6.

3

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4