United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
& DISTRIBUTION CENTER,
Capital Heights, MD, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0955
Issued: February 25, 2022

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 June 9, 2021 appellant, through counsel, filed a timely appeal from an April 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability, commencing July 18, 2018, causally related to the accepted January 21, 2016
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 14, 2016 appellant, then a 45-year-old laborer custodian, filed an occupational
disease claim (Form CA-2) alleging that she sustained plantar fasciitis due to factors of her federal
employment, including constant walking on concrete floors. She noted that she first became aware
of her condition on January 21, 2016 and related it to her federal employment on March 3, 2016.
OWCP accepted the claim for plantar fascial fibromatosis of the left foot. Appellant did not
initially stop work.
On June 23, 2016 appellant accepted a limited-duty assignment for eight hours per day.
OWCP paid her intermittent wage-loss compensation on the supplemental rolls commencing
July 12, 2016.
In a June 26, 2018 letter, C.D., a human resource management specialist, indicated that
appellant was offered a detail as a retail analyst on April 14, 2018, that required eight hours of
sitting at a computer and watching cameras. She noted that appellant was not performing the work
required and was released from the detail. C.D. indicated that she spoke to appellant and instructed
her to return to her modified-duty assignment; however, appellant responded that she did not like
the supervisor and that she could not do the work, and that management needed to find her a nother
job that allowed her to sit for eight hours per day. She noted that appellant complained about her
ankle/foot, even though she was on a detail that allowed her to sit all day.
In a letter dated July 17, 2018, Dr. Steven S. Blanken, a podiatrist, noted that appellant
was experiencing severe pain due to a posterior tibial tendinitis injury to her left foot. He related
that the pain had worsened and advised that she would need to use a controlled ankle movement
(CAM) boot for four to eight weeks.
In a July 17, 2018 progress report, Dr. Blanken noted that appellant was performing manual
activities at work, such as pushing and pulling carts, and developed pain around the posterior
tibialis tendon resulting in knee pain due to compensation. He diagnosed posterior tibial tendinitis,
left leg, and plantar fascial fibromatosis. Dr. Blanken advised that appellant’s job duties were
probably not good for her, as her foot condition had worsened. He also related that she needed a
sedentary position, as she would not be able to tolerate this type of activity much longer.
Dr. Blanken opined that appellant had reaggravated the posterior tibial tendon and she would need

3

Docket No. 19-1637 (issued February 25, 2021)

2

to use non-weight-bearing crutches and a CAM boot for at least four weeks. He recommended
against prolonged standing, walking, climbing, stairclimbing, pushing, or pulling.
In a July 17, 2018 duty status report (Form CA-17), Dr. Blanken indicated that appellant
had severe posterior tibial tendinitis. He advised that she was able to work an eight-hour workday;
however, she was unable to stand, climb, kneel, bend, stoop, twist, pull, or push.
In statements dated July 10, 17, and 18, 2018, appellant indicated that she currently was
walking four hours per day on a concrete floor to perform her work duties.
On July 18, 2018 appellant filed a notice of recurrence (Form CA-2a) claiming a recurrence
of disability beginning July 18, 2018. She noted that she had posterior tibial tendinitis, flare-ups
of her ankle, and pain in her foot. Appellant indicated that she was sent home on July 18, 2018.
In a development letter dated July 26, 2018, OWCP noted receipt of appellant’s claim for
a recurrence of disability due to a material change/worsening of the accepted work -related
condition. It also noted that she returned to work on June 18, 2018, in a limited-duty capacity and
continued working until July 17, 2018, when she stopped work. OWCP explained that it was
unclear as to whether appellant’s work stoppage was due to a recurrence of an accepted condition.
It also explained that, if her disability was due to a new work-related injury or illness, a new claim
would need to be filed/created, even if the new incident or exposure involved the same part of the
body as previously affected. OWCP also included a list of questions. It afforded appellant 30
days to submit the necessary evidence.
In a July 27, 2018 statement, appellant noted that her detail was withdrawn due to her
performance. In a subsequent statement of even date, she indicated that her detail was withdrawn
due to her medical condition. In a July 30, 2018 statement, appellant indicated that her accepted
January 21, 2016 employment injury had not resolved and that she also had posterior tibial
tendinitis.
In an August 1, 2018 statement, appellant related that she was not qualified for the
sedentary position and she was terminated due to work quality. She explained that she was given
a CAM boot on July 17, 2018, and when she returned to the work, she was sent home, as she was
not allowed to wear a medical device on the floor. Appellant alleged that she was not given a
reasonable accommodation.
In an August 2, 2018 progress report, Dr. Blanken noted that appellant had acquired a new
ankle brace. He also related that she had ongoing conditions of posterior tibialis tendinitis along
with plantar fasciitis of the left lower extremity due to her employment injury. Dr. Blanken opined
that it was possible that two different conditions could arise from the same injury. He noted that
the injury to the Achilles tendon was “for the most part resolved.” However, Dr. Blanken related
that appellant was not allowed to wear her CAM boot at work, thus, potentially causing further
damage. He diagnosed posterior tibial tendinitis, left leg, and plantar fascial fibromatosis.
Dr. Blanken noted that the problem was established, stable, or improved.
In a separate report also dated August 2, 2018, Dr. Blanken explained that the posterior
tibial tendinitis and tendinosis issues could be related to a single injury, and that he did not have

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time to “keep on re-documenting the same thing over and over again.” He recommended an ankle
brace and advised that appellant may not be able to drive with the device.
On September 13, 2018 OWCP referred appellant for a second opinion examination with
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, to determine the status of appellant’s
work-related condition and her work capacity.
In a September 25, 2018 report, Dr. Blanken noted that appellant stopped work on
July 17, 2018. He related that he informed her that, while plantar fasciitis and tibial tendinitis were
separate conditions, “the plantar fascia, the posterior tibial tendon, and even the Achilles tendon
can all be injured at the same time of an injury that causes sudden impact. They do not seem to
understand that this can happen and are challenging the diagnosis.” Dr. Blanken also indicated
that appellant had a posterior tibialis tendon condition with continued pain, which corresponded
to posterior tibialis dysfunction in tendinitis along with tendinosis. He diagnosed posterior tibial
tendinitis and plantar fascial fibromatosis.
On September 25, 2018 Dr. Blanken also completed a duty status report (Form CA-17) in
which he limited appellant to no more than four hours of standing and walking, kneeling, bending,
stooping, and driving a vehicle, in an eight-hour day. He provided a separate disability certificate,
advising that she could return to work on September 26, 2018 with the restrictions noted in the
duty status report.
In an October 4, 2018 report, Dr. Hanley noted appellant’s history of injury and medical
treatment. He examined her and found that she had full range of motion (ROM) of the ankle, full
subtalar ROM, and pain on eversion. Dr. Hanley explained that appellant had pain over the
posterior tibial tendon, with an area of swelling along the course of the tendon. He also noted that
there were no obvious clinical signs of active inflammatory condition in the plantar fa scia on either
side. Dr. Hanley diagnosed posterior tibial tendinitis without evidence of rupture and noted that
there were no findings at present to suggest a clinically significant plantar fasciitis. He indicated
that appellant was presently suffering from an acute posterior tibial tendinitis on the left.
Dr. Hanley explained that the cause was not related to her work exposure over the prior several
months, because her exposure was minimal as she was on restricted duty. He opined that
appellant’s condition was “more of a reaction to her preexisting pes planus, which puts additional
stress on the medial side of the foot.” Dr. Hanley also noted that she was capable of performing
her modified job offer from December 21, 2017. However, he indicated that appellant would have
a hard time recovering if she were to be on her feet the entire eight-hour day. Dr. Hanley explained
that plantar fasciitis did not lead to posterior tibial tendinitis. He noted that the record revealed
that appellant was released from care in mid-2017. Dr. Hanley advised that she should seek
additional medical care. He completed a work capacity evaluation (Form OWCP-5c) and indicated
that appellant was capable of working an eight-hour day, with a four-hour limitation on walking.
On October 12, 2018 appellant accepted a job offer for a modified-duty assignment, which
required no more than four hours of walking, standing, bending, and stooping. She returned to
full-time modified duty on October 14, 2018.
By decision dated October 15, 2018, OWCP denied appellant’s recurrence claim. It found
that she was not taken off work due to her plantar fibromatosis, but due to her posterior tibial

4

tendinitis, which was a separate condition. It explained that Dr. Hanley determined that appellant’s
left posterior tibial tendinitis were not employment related. OWCP concluded that she was not
disabled from work due to a material change/worsening of the accepted work -related condition.
On October 24, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
March 12, 2019. During the hearing, it was noted that the posterior tibial tendinitis was the subject
of a separate claim, OWCP File No. xxxxxx935. Counsel requested that the claims be
administratively combined.
By decision dated May 24, 2019, OWCP’s hearing representative affirmed the October 15,
2018 decision, finding that the evidence of record was insufficient to establish that appellant
sustained a recurrence of disability on July 18, 2018, due to the accepted plantar fasciitis condition.
On July 30, 2019 appellant, through counsel, filed a timely appeal from the May 24, 2019
decision. By decision dated February 25, 2021, the Board found that appellant had not met her
burden of proof to establish a recurrence of disability, commencing July 18, 2018, causally related
to the accepted January 21, 2016 employment injury.
On April 1, 2021 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In an October 1, 2019 report, Dr. Blanken noted that appellant was evaluated on that date
for the same injury. In a January 11, 2021 report, he noted that she was evaluated for her foot
condition and opined that she had chronic foot conditions resulting in severe pain with weight
bearing. Dr. Blanken advised that appellant may need to limit her weight bearing from time to
time depending on the severity of the pain.
In a March 11, 2021 report, Dr. Blanken advised that appellant was seen for a recurrence
of two injuries to her left foot. He recommended very light work for three to four weeks and
referred to her work restrictions provided on March 4, 2021.
Dr. Blanken noted in a March 12, 2021 report that appellant was provided with a work
excuse on March 11, 2021. He further noted that he was providing an addendum to clarify the
type of light-duty work she could perform. Dr. Blanken reported that appellant could continue to
empty trash, clean, and sweep the restroom floors and work areas, and stock supplies weighing no
more than 15 pounds. He explained that, due to her foot condition, it was medically necessary to
limit pushing and pulling heavy carts more than 15 pounds, or the physical impact would cause
her to have inflammation and strains to her foot and ankle and cause further aggravation.
Dr. Blanken noted that it was his understanding that the carts required for appellant’s duties
weighed more than her restrictions and requested an accommodation or alternative to the carts.
By decision dated April 26, 2021, OWCP denied modification of the May 25, 2021
decision.

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LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.4 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction -in-force) or when the physical
requirements of such an assignment are altered so that they exceed the established physical
limitations.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited -duty work. As part of
this burden, the employee must show a change in the natu re and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements. 6 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning. Where no such rationale is present, the medical evidence is
of diminished probative value.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing July 18, 2018, causally related to the accepted January 21, 2016
employment injury.
By decision dated February 25, 2021, the Board affirmed OWCP’s May 24, 2019 decision,
finding that none of the medical evidence contained a rationalized medical explanation
establishing a recurrence of disability, commencing July 18, 2018, causally related to the accepted
January 21, 2016 employment injury, which was accepted for plantar fascial fibromatosis.
Findings made in prior Board decisions are res judicata absent any further review by OWCP under

4

20 C.F.R. § 10.5(x); S.W., Docket No. 18-1489 (issued June 25, 2019).

5

Id.

6

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001); Terry A.
Hedman, 38 ECAB 222 (1986).
7

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

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section 8128 of FECA. 8 The Board, therefore, will not consider the evidence addressed in the
prior appeal. 9
Following OWCP’s May 24, 2019 decision, OWCP received additional medical evidence
from Dr. Blanken dated October 1, 2019 to March 12, 2021. This additional medical evidence,
however, addressed appellant’s conditions after the claimed period of recurrent disability.
Dr. Blanken did not provide an opinion that appellant sustained a recurrence of disability
commencing July 18, 2018, causally related to the accepted January 21, 2016 employment injury.
The Board has held that the medical evidence must directly address the dates of disability from
work for which compensation is claimed. 10 The Board, therefore, finds that appellant has not met
her burden of proof to establish her recurrence claim.11
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 recurrence of
disability, commencing July 18, 2018, causally related to the accepted January 21, 2016
employment injury.

8
See T.W., Docket No. 20-0836 (issued July 21, 2021); E.H., Docket No. 19-1569 (issued April 2, 2020); J.T.,
Docket No. 18-1757 (issued April 19, 2019); S.S., Docket No. 17-1106 (issued June 5, 2018); H.G., Docket No. 161191 (issued November 25, 2016).
9

B.R., Docket No. 20-0050 (issued March 4, 2021); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

10

J.B., Docket No. 18-1751; 19-0793 (issued May 6, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

11

L.V., Docket No. 19-1725 (issued April 5, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the April 26, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 25, 2022
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lacon, IL, Employer
__________________________________________

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

Docket No. 16-0886
Issued: August 19, 2016

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 March 23, 2016 appellant filed a timely appeal of a January 7, 2016 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.2
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

After OWCP’s January 7, 2016 decision, appellant submitted additional evidence. However, the Board may not
consider new evidence on appeal; see 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On October 14, 2015 appellant then a 52-year-old clerk, filed an occupational disease
claim (Form CA-2), alleging that she developed carpal tunnel syndrome as a result of manual
sorting, casing, and keying mail, eight hours a day throughout her 28-year postal career. She
first became aware of her condition on October 8, 2015 and realized that it was causally related
to her employment on the same date. Appellant was last exposed to the conditions alleged to
have caused her condition on October 8, 2015.
By letter dated November 12, 2015, OWCP advised appellant of the type of evidence
needed to establish her claim. It particularly requested that she submit a physician’s reasoned
opinion with medical diagnoses addressing the relationship of her claimed condition and specific
employment factors. OWCP also requested the employing establishment submit treatment notes
if appellant was treated at an agency medical facility.
Appellant submitted a report from Dr. Robert J. Mitchell, an osteopath, dated
November 12, 2015, who treated her for bilateral hand pain, finger numbness, and tingling. She
reported a gradual onset of pain over a 10-year period and advised that two years ago she
underwent an electromyogram (EMG) and was diagnosed with carpal tunnel syndrome.
Appellant reported difficulty with activities of daily living, dropping items, and limited gripping.
Dr. Mitchell noted findings of abnormal bilateral upper extremity peripheral sensation when
tested for two-point discrimination, decreased sensation of the median nerve distribution,
positive Tinel’s and Phalen’s signs, normal alignment the bilateral wrists with no deformity or
tenderness, and intact strength of the bilateral forearms, wrists, and hands. He diagnosed
bilateral carpal tunnel syndrome and counseled appellant on conservative treatment and surgical
options and alternatives. Dr. Mitchell referred appellant for an updated EMG.
In a decision dated January 7, 2016, OWCP denied the claim finding that the
requirements have not been met for establishing an injury or medical condition causally related
to the accepted work factors.3
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims an injury in the performance of
duty, he or she must submit sufficient evidence to establish that he or she experienced a specific

3

By decision dated May 23, 2016, OWCP denied appellant’s request for a review of the written record as
untimely. The Board and OWCP may not simultaneously exercise jurisdiction over the same issue in the same case.
Because OWCP must review its decision in order to exercise its discretion on whether to grant an untimely request
for a hearing, it may not issue a decision granting or denying a request for a hearing regarding the issue on appeal
before the Board. It lacked authority to issue its May 23, 2016 decision, as the case was at that time before the
Board on an appeal of the same decision on which the hearing was requested. Accordingly, OWCP’s May 23, 2016
decision is rendered null and void. See 20 C.F.R. § 501.2(c)(3); Arlonia B. Taylor, 44 ECAB 591, 597 (1993).

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event, incident, or exposure occurring at the time, place, and in the manner alleged. Appellant
must also establish that such event, incident, or exposure caused an injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
It is undisputed that appellant’s work duties as a clerk included repetitively sorting mail,
casing mail, and keying mail. It is also undisputed that she was diagnosed with bilateral carpal
tunnel syndrome. However, the Board finds that appellant has not submitted sufficient medical
evidence to establish that her diagnosed conditions are causally related to specific employment
factors.
On November 12, 2015 OWCP advised appellant of the type of medical evidence needed
to establish her claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how specific employment factors may have caused or aggravated her
claimed condition.
The only medical evidence submitted by appellant was a November 12, 2015 report from
Dr. Mitchell who treated appellant for bilateral hand pain, finger numbness, and tingling.
Appellant reported a gradual onset of pain over a 10-year period and advised that she had been
diagnosed with carpal tunnel syndrome. Dr. Mitchell noted findings on examination and
diagnosed bilateral carpal tunnel syndrome. However, this report fails to note a history of injury6
or offer an opinion on how appellant’s employment could have caused or aggravated her
4

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
5

Solomon Polen, 51 ECAB 341 (2000).

6

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

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condition.7 Consequently this report is of limited probative value and does not establish
appellant’s occupational disease claim.
As noted, part of appellant’s burden of proof includes the submission of rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship between the employment and the diagnosed condition. Therefore, these
notes are insufficient to meet appellant’s burden of proof.
The record contains no other medical evidence. Because appellant has not submitted
reasoned medical evidence explaining how and why her bilateral carpal tunnel syndrome is
employment related, she has not met her burden of proof.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.8 Appellant failed to submit such evidence, and OWCP
therefore properly denied her claim for compensation.
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 did not meet her burden of proof to establish an
occupational disease causally related to factors of her federal employment.

7

A.D., 58 ECAB 149 (November 14, 2006) (medical evidence which does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship).
8

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the January 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 19, 2016
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

5


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

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

Docket No. 07-831
Issued: July 13, 2007

Case Submitted on the Record

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

JURISDICTION
On February 5, 2007 appellant filed a timely appeal of a September 22, 2006 decision of
the Office of Workers’ Compensation Programs that denied his claim for an emotional condition
and a December 11, 2006 decision that denied his request for a hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied appellant’s request for an oral
hearing.
FACTUAL HISTORY
On August 1, 2006 appellant, then a 67-year-old letter carrier, filed a traumatic injury
claim, alleging that on July 28, 2006 he experienced “pressure by supervisor” and job stress in
the course of his federal employment. He stopped work on July 28, 2006. The employing
establishment controverted the claim.

In a July 29, 2006 report, Dr. Paul L. Hart, a family practitioner, noted that appellant
suffered from a number of significant medical problems including hypertension. He added that
appellant had a history of a “severe work-related accident the cause of which we were unable to
fully establish.” Dr. Hart noted that appellant eventually returned to work with the provision that
he maintain close medical supervision and strict control of his hypertension. He indicated that
appellant presented in his Office after he was “harassed at work.” Dr. Hart noted that appellant
was treated for shortness of breath, weakness, acute anxiety and elevated blood pressure. He
opined that appellant did not suffer lasting damage from the episode and recommended that he
not return to work unless the harassment was discontinued.
In an August 10, 2006 statement, Carol Cinelli, an injury compensation specialist for the
employing establishment, controverted appellant’s claim. She noted that, while appellant
reported that he was being pressured by supervisors, he did not identify how the supervisor
caused him to become stressed. Ms. Cinelli alleged that a supervisor merely instructed appellant
to take out half the marriage mail along with the rest of his route. She alleged that, when he was
refused assistance, a steward was requested and appellant subsequently reported that “he was
feeling ill.” Ms. Cinelli informed the Office that appellant had a long history of hypertension.
She denied that appellant was harassed and alleged that his “perception of the situation caused
his condition and not harassment from his supervisor.” In an undated statement, received on
August 10, 2006, Patrick Graham, a supervisor, alleged that on July 21, 2006 appellant started
the workday by meeting with a union steward for approximately 10 minutes. Afterwards,
appellant went to his case to pitch mail. Mr. Graham went over to appellant to instruct him
regarding “marriage mail” and appellant responded that he needed assistance. He informed
appellant that he did not have anyone to help at that time and that he was to do his own work.
Mr. Graham informed appellant that he should work at least an hour and afterwards, he would
“consider giving him more time to talk with a steward.” He alleged that appellant requested a
union steward and, after the meeting, informed the supervisor that he was not feeling well.
In letters dated August 18 and 23, 2006, the Office requested additional factual and
medical evidence from appellant and the employing establishment.
On September 18, 2006 appellant alleged that the activities that he believed contributed
to his condition were poor supervisors.
By decision dated September 22, 2006, the Office denied the claim on the basis that the
evidence was insufficient to establish that the events occurred as alleged.
In correspondence postmarked November 6, 2006, appellant requested a telephonic
hearing.
By decision dated December 11, 2006, the Office found that appellant was not entitled to
a hearing as a matter of right as his November 6, 2006 request was not made within 30 days of
the September 22, 2006 decision. The Office further considered the matter and denied a
discretionary hearing because appellant could further pursue his claim by submitting new
evidence with a reconsideration request.

2

LEGAL PRECEDENT -- ISSUE 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 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.1 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 his frustration from not being permitted to work in a particular
environment or to hold a particular position.2
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.3 This burden includes the submission of a detailed
description of the employment factors or conditions, which the employee believes caused or
adversely affected the condition or conditions, for which compensation is claimed.4
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.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS -- ISSUE 1
The Board notes that appellant alleged that he was harassed and pressured by his
supervisor at work on July 28, 2006. He alleged that he sustained an emotional condition as a
result of an employment incident on July 28, 2006. The Board must, thus, initially review
whether the alleged incident is compensable under the terms of the Act.

1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
3

Pamela R. Rice, 38 ECAB 838, 841 (1987).

4

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

5

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

6

Id.

3

The Board has characterized supervisory discussions of job performance and reprimands
as administrative or personnel matters.7 As noted, frustration from not being permitted to work
in a particular environment is not compensable. Appellant did not describe any specific details
as to why he believed that he was pressured or harassed by Mr. Graham. However, his
supervisor provided a statement noting that on July 21, 2006 appellant started the workday by
meeting with a union steward for approximately 10 minutes. Mr. Graham subsequently
approached appellant at his case to instruct him regarding marriage mail and appellant responded
that he needed assistance. He advised appellant that he did not have anyone to help him at that
time and to do his own work. After an hour, the supervisor would consider giving him more
time to talk with a steward. Appellant then requested a union steward and, after meeting with the
steward, informed Mr. Graham that he was not feeling well. The Board notes that these
allegations pertain to administrative matters.8 Appellant has not presented evidence sufficient to
establish that his supervisor acted abusively or unreasonably in the matter.
Appellant generally alleged that his supervisors pressured or harassed him, but did not
provide a narrative description of any actions or incidents. For harassment or discrimination to
give rise to a compensable disability, there must be evidence introduced which establishes that
the acts alleged or implicated by the employee did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under the Act. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred.9
The Board finds that appellant has not established any compensable employment factors
under the Act. Therefore, he has not met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.10
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, states: “Before review under section 8128(a) of this title, a claimant not
satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after the
date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”11 Sections 10.617 and 10.618 of the federal regulations implementing this section of
the Act provide that a claimant shall be afforded a choice of an oral hearing or a review of the

7

David C. Lindsey, Jr., 56 ECAB ___ (Docket No. 04-1828, issued January 19, 2005). Workers’ compensation
law does not cover an emotional reaction to an administrative or personnel action unless the evidence establishes
error or abuse on the part of the supervisor. Beverly R. Jones, 55 ECAB 411 (2004).
8

See Linda J. Edwards-Delgado, 55 ECAB 401 (2004) (mere disagreement with or dislike of actions taken by a
supervisor or manager will not be compensable absent evidence establishing error or abuse).
9

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

10

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
11

5 U.S.C. § 8124(b)(1).

4

written record by a representative of the Secretary.12 Office procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.13
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for a hearing. Section
8124(b) provides that, “before review under section 8128(a),” a claimant for compensation is
entitled to a hearing on her claim on a request made within 30 days after the date of issuance of
the decision.14 Office regulation provided that a claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.15
Appellant’s hearing request was postmarked on November 6, 2006. However, this was
more than 30 days after the September 22, 2006 Office decision. Appellant’s request was not
timely made and, therefore, he had no right to a hearing.
Even though appellant has no right to a hearing if not requested within 30 days, the
Office must exercise its discretion in either granting or denying a late request for a hearing.16
The Office, in its December 11, 2006 decision, properly exercised its discretion in denying
appellant’s request for a hearing. The Office considered the matter and determined that any
evidence not previously considered could be submitted, together with a request for
reconsideration, to the Office. Consequently, the Office properly denied appellant’s request for a
hearing.
The Board finds that the Office properly exercised its discretion in denying appellant’s
hearing request and determining that his case could be addressed equally well by requesting
reconsideration and submitting evidence not previously considered.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty. The Board also finds that the Office properly denied
appellant’s request for an oral hearing.

12

20 C.F.R. §§ 10.616, 10.617.

13

Claudio Vasquez, 52 ECAB 496 (2002).

14

See 5 U.S.C. § 8124(b).

15

20 C.F.R. § 10.616(a).

16

Herbert C. Holley, 33 ECAB 140 (1981).

5

ORDER
IT IS HEREBY ORDERED THAT the December 11 and September 22, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 13, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.D., Appellant
and
U.S. POSTAL SERVICE, LOUISIANA
PERFORMANCE CLUSTER, New Orleans, LA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
C.B. Weiser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-296
Issued: September 19, 2011

Case Submitted on the Record

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

JURISDICTION
On November 10, 2010 appellant filed a timely appeal from the June 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 his burden of proof to establish that he sustained an
emotional condition in the performance of duty on October 15, 2009.
FACTUAL HISTORY
On October 15, 2009 appellant, then a 40-year-old supervisor of customer service, filed a
traumatic injury claim alleging that he sustained an emotional condition in the performance of
1

5 U.S.C. §§ 8101-8193.

duty on October 15, 2009.2 He claimed that he was pushed by Steve Swartz, the officer-incharge for the postmaster at his workplace.
Appellant submitted several statements in which he described the claimed events of
October 15, 2009. He asserted that Mr. Swartz instructed him to enter his office on October 15,
2009 and proceeded to crowd him. Appellant asserted that Mr. Swartz instructed him to go back
to his work unit and “pushed his stomach against mine and pushed me with his hand.” In
another October 15, 2009 statement, he claimed that Mr. Swartz asked him numerous questions
on October 15, 2009 but did not allow him to answer the questions in an effort to bully him.
Mr. Swartz unfairly blamed appellant for the fact that a mail carrier did not leave the work unit
on time and would not listen to his explanation that the carrier was late due to the large volume
of mail he had to deliver. Appellant claimed that Mr. Swartz then shouted “go!!, go!!” at him
and that he followed this command. He alleged that Mr. Swartz crowded into him and “pushed
his stomach against mine and then pushed me with his hand.”
Appellant submitted medical reports from Dr. Dwight L. McKenna, an attending Boardcertified internist, who diagnosed depression, anxiety and post-traumatic stress disorder.
In an October 15, 2009 statement, Mr. Swartz noted that he spoke with appellant that day
and asked him to focus on getting his mail carriers out of the work unit on time. When he
walked away to speak to another employee, appellant followed and began to argue about his
work performance. Mr. Swartz told appellant to stop arguing and when he did not stop told him
to go back to his work unit and focus on getting his mail carriers out on time. He stated that
appellant got down on his hands and knees started barking like a dog, and then walked away. A
few minutes later Mr. Swartz told appellant not to act in a disrespectful manner; but appellant
responded that Mr. Swartz was treating him like a dog. He asserted that appellant then taunted
him, stating in part, “I’m not afraid of you,” “I want you to hit me” and “I’ll give it to you.”
Mr. Swartz told appellant to go back to his work unit or go home. Appellant then left
Mr. Swartz’ office.
Appellant submitted several statements of coworkers. In an October 17, 2009 statement,
Troy Joseph, a coworker, noted that on October 15, 2009 he heard appellant and Mr. Swartz
discussing something on the work floor in Zone 19. He stated that Mr. Swartz “[stated]
something rude” to appellant and that appellant “crawled away somewhat to [Z]one 22.”
Mr. Joseph stated that appellant later returned and told Mr. Swartz that he should not “[t]alk
[t]hat way to [h]im [b]ecause [h]e [was not] [a] [d]og.” A short while later, appellant came back
to Zone 19 and asserted that Mr. Swartz hit him while using the telephone.
In an undated statement, Marc Plummer, a coworker, noted that on October 15, 2009, he
heard Mr. Swartz tell appellant something like “go, go” and noted that, when Mr. Swartz
mentioned putting appellant off the clock, appellant responded, “I’m not afraid of being put off
the clock.” Appellant later came out of Mr. Swartz’ office and claimed that Mr. Swartz hit him.
Alisa Leonard, a coworker, stated that on October 15, 2009 Mr. Swartz told appellant that
he had to focus on getting the mail carriers out on time. Appellant then started to defend his
2

Appellant indicated that he could not swallow and had shortness of breath.

2

actions in a loud manner and Mr. Swartz told appellant to “just stop.” Mr. Swartz told him to go
back to his work unit but he continued to argue. Ms. Leonard stated that appellant got down on
the floor and began crawling and barking like a dog. Mr. Swartz told appellant not to disrespect
him and appellant shouted in response that he was being disrespected. Ms. Leonard asked
appellant to not talk so loudly. After spending a few minutes in Mr. Swartz’ office, appellant
stormed out of the office, slammed a door after entering another office and asserted that
Mr. Swartz assaulted him by bumping into him.3
In a January 6, 2010 decision, OWCP denied appellant’s claims on the grounds that he
did not establish any compensable work factors. It was found that he did not establish that
Mr. Swartz hit him or committed any error or abuse in the claimed administrative matters.
Appellant requested a telephone hearing before an OWCP hearing representative. During
the hearing held on April 6, 2010, he asserted that on October 15, 2009 Mr. Swartz approached
him and repeatedly inquired why a particular carrier earned $95,000.00 in the prior year.
Mr. Swartz expressed his displeasure with this circumstance and appellant sensed that he was
displaying hostility. Appellant indicated that Mr. Swartz began discussing the various mail
routes, the number of parties working the routes and the splitting of routes, without giving him
an opportunity to answer. In response, he fell to the floor and crawled away. Mr. Swartz later
yelled at appellant and ordered him not to disrespect him. Appellant responded to Mr. Swartz
that he was the person who had been disrespected. He asserted that Mr. Swartz screamed at him
and told him to go to the manager’s office. Appellant claimed that Mr. Swartz followed him into
the office, walked into his face, and began pointing, yelling and screaming at him. He asserted
that when Mr. Swartz told him to go back to running his unit, he “walked into me and grabbed
the door handle while he bumped his stomach into me and he manipulated me out of the door....”
Subsequent to the April 6, 2010 hearing, OWCP received copies of an April 26, 2010
e-mail correspondence from Mr. Swartz to a health and human services specialist at the
employing establishment, copies of papers pertaining to appellant’s legal action against
Mr. Swartz in municipal court, copies of numerous medical reports and a May 6, 2010 letter
from counsel with numerous exhibits.4 In the April 26, 2010 e-mail, Mr. Swartz indicated that
he did not raise his voice to appellant on October 15, 2009 but rather he asked him basic
questions about his work operation. Appellant acted in a confrontational manner and had
crawled on the floor and barked like a dog. As he became combative, he was instructed to go to
his work unit or go home. Mr. Swartz asserted that no physical contact ever took place and
indicated that appellant lost a court case against him.

3

The record also contains an October 21, 2009 e-mail in which Ms. Leonard provide a similar description of the
events of October 15, 2009. Ms. Leonard indicated that Mr. Swartz told her on October 15, 2009 that appellant told
him that he wanted to hit him. In an October 19, 2009 statement, Alvin Every, a coworker, related appellant’s
account of the events of October 15, 2009, including his admission that he got down on his hands and knees and
walked and barked like a dog. However, it does not appear that Mr. Every directly observed appellant’s actions on
October 15, 2009.
4

There is no indication that appellant won a legal judgment against Mr. Swartz for the claimed assault on
October 15, 2009.

3

Appellant submitted several additional witness statements. In a March 4, 2010 statement,
Mr. Joseph stated with respect to the events of October 15, 2009, “I do remember [Mr. Swartz]
yelling at [appellant] in an abusive manner telling him to go back to his [work] unit….” In
response to several questions posed to him by an unknown party, Mr. Plummer stated that on
October 15, 2009 Mr. Swartz was not behaving in a professional manner and indicated that
appellant did not “get out of line.” On March 4, 2010 Raymond Bookman, a coworker, indicated
that on October 15, 2009 he heard Mr. Swartz say “go, go” to appellant in a loud, rude and
abusive tone. Mr. Swartz then pointed his finger at appellant and told him to go for a third time.
Mr. Bookman noted that he did not hear appellant say anything.
In a June 22, 2010 decision, OWCP’s hearing representative affirmed OWCP’s
January 6, 2010 decision finding that appellant had not established any compensable work
factors.5
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
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 regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.6
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.8
5

OWCP’s hearing representative did not find any compensable work factors, but he did state,
“In the case at hand, it is accepted as factual that a discussion occurred between [appellant] and
[Mr. Swartz] regarding a particular carrier’s salary the year before, personnel working routes,
number and splitting of routes and timeliness of completion. It is accepted that the claimant in the
midst of correction dropped to the floor and barked, simulating a dog and crawled off toward his
work area. The claimant then returned and indicated that he should not be talked to ‘that way,’
because he was not a dog. It is accepted that [Mr. Swartz] indicated that the claimant not to
disrespect him like that again, to which the claimant responded that it was he (claimant) that was
disrespected. The claimant was then brought to the manager’s office where a discussion occurred
and the claimant was directed back to his work area.”

6

Lillian Cutler, 28 ECAB 125 (1976).

7

Pamela R. Rice, 38 ECAB 838, 841 (1987).

8

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

4

In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
ANALYSIS
Appellant alleged that he sustained an emotional condition on October 15, 2009 due to
the actions of Mr. Swartz, his supervisor. By decisions dated January 6 and June 22, 2010,
OWCP denied his emotional condition claim on the grounds that he did not establish any
compensable work factors. The Board must initially review whether the alleged incidents and
conditions of employment are covered work factors under FECA. The Board notes that
appellant’s allegations do not pertain to his regular or specially assigned duties under Culter.11
Rather, appellant has alleged error and abuse with respect to administrative matters by a
supervisor and harassment by Mr. Swartz.
Regarding appellant’s allegations that Mr. Swartz engaged in improper disciplinary
actions and unreasonably scrutinized his activities at work on October 15, 2009,12 the Board
finds that these allegations relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties and do not fall within the coverage of
FECA.13 Although the handling of such matters are generally related to the employment, they
are administrative functions of the employer, and not duties of the employee.14 However, the
Board has also found that an administrative or personnel matter will be considered to be a work
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.15
9

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

10

Id.

11

See Cutler supra note 6.

12

For example, appellant alleged that Mr. Swartz unfairly blamed him for the fact that a mail carrier did not leave
the work unit on time and would not listen to his explanation that the carrier was late due to the large volume of mail
he had to deliver.
13

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
14

Id.

15

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

5

The Board finds that appellant did not submit sufficient evidence to establish that the
employing establishment committed error or abuse with respect to these matters. Appellant did
not submit evidence, such as a successful result of a grievance, showing that Mr. Swartz
committed error or abuse when discussing or scrutinizing his work performance on
October 15, 2009. Thus, he has not established a compensable employment factor under FECA
with respect to administrative matters.
Appellant has also alleged that harassment by Mr. Swartz on October 15, 2009
contributed to his claimed stress-related condition. He claimed that Mr. Swartz pushed his
stomach against his body and then pushed him with his hand. Appellant also alleged that
Mr. Swartz attempted to bully him by yelling at him in an abusive manner and not listening to
his answers to questions. To the extent that disputes and incidents alleged as constituting
harassment by supervisors are established as occurring and arising from appellant’s performance
of his regular duties, these could constitute employment factors.16 However, for harassment to
give rise to a compensable disability under FECA, there must be evidence that harassment did in
fact occur. Mere perceptions of harassment are not compensable under FECA.17
With respect to the claim that Mr. Swartz made physical contact with appellant, there is
no probative evidence in the record that such physical contact actually occurred. Several
coworkers indicated in witness statements that appellant told them on October 15, 2009 that
Mr. Swartz hit him, but none of these coworkers were in a position to observe whether such an
action actually occurred.18 Therefore, appellant has not established his claim in this regard.
With respect to the claims of loud and abusive behavior, Mr. Swartz denied that appellant
was subjected to harassment and appellant has not submitted sufficient evidence to establish that
he was harassed by Mr. Swartz.19 There is some indication in the evidence of record that
Mr. Swartz told appellant to go back to his work unit, perhaps in a raised or insistent voice, and
that he told appellant not to act in a disrespectful manner. The Board has recognized the
compensability of verbal altercations or abuse in certain circumstances, but this does not imply
that every statement uttered in the workplace will give rise to coverage under FECA.20
Appellant has not established that Mr. Swartz’ actions rose to the level of harassment. It appears
from the record that appellant was in an agitated state on October 15, 2009 and Mr. Swartz was
responding to his argumentative and unusual behavior, including crawling on the floor and
barking like a dog. While some coworkers described Mr. Swartz’ behavior as loud, rude or
abusive, they provided limited description of why they felt that Mr. Swartz’ actions could be
characterized in such a manner. Appellant did not submit sufficient witness statements, or other
16

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

17

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

18

It appears that appellant filed a court case regarding the claimed assault but the record does not contain any
legal decision finding in his favor on this matter.
19

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment with probative and reliable evidence).
20

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994).

6

corroborating evidence, to show that Mr. Swartz committed harassment.21 Thus, he has not
established a compensable employment factor under FECA with respect to the claimed
harassment.
For the foregoing reasons, appellant has not established any compensable work factors
under FECA and, therefore, has not met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty on October 15, 2009.22
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 did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty on October 15, 2009.

21

See William P. George, 43 ECAB 1159, 1167 (1992).

22

As appellant has not established any compensable work factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the June 22, 2010 decision of the Office Workers’
Compensation Programs is affirmed.
Issued: September 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, NAVAL AIR )
DEPOT, Cherry Point, NC, Employer
)
___________________________________________ )
G.M., Appellant

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

Docket No. 10-418
Issued: September 13, 2010

Case Submitted on the Record

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

JURISDICTION
On December 2, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated November 12, 2009. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained more
than a five percent permanent impairment of his right arm or more than a five percent permanent
impairment of his left arm, for which he received a schedule award.
FACTUAL HISTORY
On September 18, 2006 appellant, then a 50-year-old aircraft mechanic filed an
occupational disease claim alleging that he sustained bilateral carpal tunnel syndrome, bilateral
ulnar nerve impairment and tennis elbow as a result of turning, wrenching, torquing bolts and
turning ratchets on aircraft carriers for 23 years while in the performance of duty. He did not
stop work. The Office accepted appellant’s claim for bilateral epicondylitis, carpal tunnel

syndrome, lesion of the ulnar nerve and ulnar nerve entrapment. It authorized a left carpal tunnel
release and ulnar nerve entrapment at the wrist, which was performed on July 7, 2007. The
Office also authorized a right carpal tunnel release and tennis elbow release, which was
performed on January 18, 2008.
In a November 4, 2008 report, Dr. Brian J. Battersby, a Board-certified orthopedic
surgeon, noted that appellant had reached maximum medical improvement with regard to his left
carpal tunnel release and left tennis elbow release. He referred to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (hereinafter
A.M.A., Guides). Under Table 16-15 of the A.M.A., Guides, Dr. Battersby determined that
appellant had five percent impairment of the left upper extremity.1 He advised that appellant had
done well after surgery, but he continued to have discomfort.
In a November 19, 2008 report, Dr. Battersby noted that appellant had reached maximum
medical improvement with regard to his right carpal tunnel release and tennis elbow release. He
referred to Table 16-15 of the A.M.A., Guides and determined that appellant had a five percent
impairment of the left upper extremity. Dr. Battersby noted that appellant continued to have
clinical symptoms despite doing well postoperatively.
In a report dated December 1, 2008, an Office medical adviser reviewed the medical
evidence and the November 4, 2008 report from Dr. Battersby. He noted that appellant had a left
carpal tunnel and left cubital tunnel release. The Office medical adviser concurred with
Dr. Battersby and opined that appellant had five percent impairment of the left arm.
In a letter dated December 8, 2008, the Office advised appellant that his report from
Dr. Battersby entitled him to a schedule award for the left arm. It advised him that he could
claim his award by filing a Form CA-7. On December 15, 2008 appellant filed a claim for a
schedule award.
In a decision dated December 18, 2008, the Office granted appellant a schedule award for
five percent impairment of the left upper extremity. The award covered a period of 15.6 weeks
from November 4, 2008 to February 21, 2009.
On January 15, 2009 appellant filed a claim for a schedule award for the right arm.
In a report dated January 20, 2009, the Office medical adviser noted that appellant had
right carpal tunnel and tennis elbow release on January 18, 2008. He advised that appellant
reached maximum medical improvement on November 19, 2008 and that he concurred with
Dr. Battersby that appellant had five percent impairment of the right arm.
In a decision dated March 12, 2009, the Office granted appellant a schedule award for
five percent impairment of the right upper extremity. The award covered a period of 15.6 weeks
from February 22 to June 11, 2009.

1

A.M.A., Guides, 495.

2

On September 21, 2009 the Office received a letter from appellant advising that he did
not believe the amount he received was adequate compensation for the pain and suffering that he
endured. Appellant alleged that he had constant pain and would endure it for the rest of his life.
The Office received treatment notes dated March 4, June 4 and a September 10, 2009
prescription for Motrin from Dr. Battersby, who advised that appellant continued to have
bilateral carpal tunnel syndrome and ulnar nerve entrapment at the elbows.
In a letter dated September 22, 2009, the Office advised appellant that he needed to
indicate which appeal option he was seeking.
On October 8, 2009 appellant requested reconsideration. He advised the Office that he
did not feel that the schedule award was adequate compensation.
By decision dated November 12, 2009, the Office denied modification of its prior
decisions.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.3 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.4 The Act’s implementing regulations has adopted
the A.M.A., Guides as the appropriate standard for evaluating schedule award losses.5
The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome (CTS),
provides that, if after an optimal recovery time following surgical decompression, an individual
continues to complain of pain, paresthesias and/or difficulties in performing certain activities,
three possible scenarios can be present: (1) positive clinical findings of median nerve
dysfunction and electrical conduction delay(s), the impairment due to residual CTS is rated
according to the sensory and/or motor deficits; (2) normal sensibility and opposition strength
with abnormal sensory and/or motor latencies or abnormal electromyography (EMG) testing of
the thenar muscles, a residual CTS is still present and an impairment rating not to exceed five
percent of the upper extremity may be justified and (3) normal sensibility (two-point
discrimination and Semmes-Weinstein monofilament testing), opposition strength and nerve
conduction studies, in which case there is no objective basis for an impairment rating.6

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8107.

4

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

20 C.F.R. § 10.404.

6

Silvester DeLuca, 53 ECAB 500 (2002).

3

ANALYSIS
The Office accepted appellant’s claim for bilateral epicondylitis, carpal tunnel syndrome,
bilateral lesion of the ulnar nerve and bilateral ulnar nerve entrapment. Appellant underwent left
carpal tunnel release and ulnar nerve entrapment surgery on July 7, 2007. He underwent a right
carpal tunnel release and tennis elbow release on January 18, 2008.
As noted above, the A.M.A., Guides provide three scenarios for determining the
permanent impairment due to CTS after an optimal recovery time following surgical
decompression.7 Utilizing these scenarios, the Board finds that the medical evidence does not
establish that appellant was entitled to receive more than five percent impairment of the right
upper extremity and five percent impairment of the left upper extremity, for which he received
schedule awards.
In this case, both Dr. Battersby, the treating physician, in November 4 and 19, 2008
reports and the Office medical adviser were in agreement regarding the extent of appellant’s
impairment. For the right arm, they noted that appellant continued to have residual symptoms.
Using the criteria for rating CTS set forth on page 495 of the A.M.A., Guides, the Board notes
that appellant would be in the second scenario and be entitled to a five percent impairment.
Dr. Battersby noted that appellant continued to have residual symptoms following the surgery.
Both he and the Office medical adviser referred to page 495 of the A.M.A., Guides, the section
on carpal tunnel syndrome. The Board notes that this provision provides for three possible
scenarios after optimum recovery time following surgical decompression in carpal tunnel cases.
As noted, the second scenario allows for up to five percent impairment of the arm where residual
CTS is present and there is normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG testing of the thenar muscles. Dr. Battersby concluded
that appellant had residuals of carpal tunnel syndrome, such as discomfort and explained the
findings that supported the rating under the second scenario and opined that appellant would be
entitled to an impairment rating of five percent of the right upper extremity. They found that
appellant reached maximum medical improvement on November 19, 2008 more than a year after
his carpal tunnel release.
For the left arm, Dr. Battersby essentially made the same findings noted above for the
right arm and referred to the criteria for rating carpal tunnel syndrome set forth on page 495 of
the A.M.A., Guides. As explained above, appellant’s continued symptoms are consistent with
the second scenario for residuals and discomfort following surgery. The Board notes that
appellant would be entitled to a five percent impairment of the left arm. Dr. Battersby, the
treating physician, found that appellant reached maximum medical improvement on
November 4, 2008, more than a year after his carpal tunnel release. He did not provide any other
reports that noted any greater percentage of impairment pursuant to the A.M.A., Guides.
The Board finds that the weight of the medical evidence, as represented by the opinions
of Dr. Battersby and the Office medical adviser, establishes that appellant has no more than five
percent impairment of the left arm or five percent of the right arm. There is no other medical
7

See id..

4

evidence of record, based upon a correct application of the A.M.A., Guides, to establish that
appellant has more than five percent permanent impairment of the right upper extremity or more
than a five percent impairment of the left upper extremity, for which he received a schedule
award.
On appeal appellant submitted new medical evidence. However, the Board may not
consider this evidence for the first time on appeal as its review of a case is limited to the
evidence that was in the case record that was before the Office at the time of its final decision.8
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained more than a five percent permanent impairment of his right upper extremity or more
than a five percent permanent impairment of his left upper extremity, for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 12, 2009 is affirmed.
Issued: September 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORATATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1954
Issued: September 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 1, 2013 appellant, through counsel, filed a timely appeal from a February 7,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has an employment-related permanent impairment to a
scheduled member or function of the body under 5 U.S.C. § 8107.

1

Under the Board’s Rules of Procedure, if the date of delivery of the notice of appeal (in this case August 12,
2013) would result in loss of appeal rights with respect to the 180-day time limitation for filing an appeal, the appeal
will be considered to be filed as of the date of postmark. 20 C.F.R. § 501.3(e) and (f). In this case, the appeal was
postmarked August 1, 2013, which is within 180 days of February 7, 2013.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has previously been before the Board. By decision dated September 12, 2012,
the Board remanded the case for further development of the medical evidence with respect to a
schedule award.3 The Board noted that the referee physician, Dr. Andrew Carollo, a Boardcertified orthopedic surgeon, had reported examination findings in a February 16, 2011 report
that range of motion for hip flexion in both hips was 100 degrees, with normal reported as 120
degrees.4 The Board remanded the case for an OWCP medical adviser’s opinion as to whether
the report from Dr. Carollo required clarification.
On return of the case record, OWCP requested that an OWCP medical adviser review
Dr. Carollo’s report and provide an opinion with respect to a permanent impairment under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). In a report dated October 16, 2012, the medical adviser stated that Dr. Carollo found no
weakness or atrophy, normal reflexes and normal sensation. He did not discuss hip range of
motion. The medical adviser opined that appellant had no impairment under the A.M.A.,
Guides.
By decision dated November 30, 2012, OWCP found that appellant was not entitled to a
schedule award. On December 19, 2012 appellant requested a review of the written record. By
decision dated February 7, 2013, the hearing representative affirmed the November 30, 2012
decision. He found that the weight of the medical evidence did not establish a permanent
impairment.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.7

3

Docket No. 12-790 (issued September 12, 2012).

4

Dr. Carollo had also stated that hip measurements “were within normal limits” without further explanation.

5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
6

A. George Lampo, 45 ECAB 441 (1994).

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

2

ANALYSIS
In the present case, the Board had remanded the case for an OWCP medical adviser to
review the referee physician report, specifically with reference to Dr. Carollo’s findings with
respect to the hips. OWCP asked a medical adviser to review Dr. Carollo’s report, although it
did not specifically discuss the hip range of motion. The medical adviser did not comment on
the question of hip range of motion.
The Board notes that, under the A.M.A., Guides, an impairment based loss of range of
motion in the lower extremities may be determined in accord with section 16.7.8 This method is
used “only if no other approach is available” to rate the impairment.9 The report from OWCP’s
medical adviser indicates that a diagnosis-based method would not result in a ratable impairment.
The medical adviser stated that Dr. Carollo found no weakness or atrophy, normal reflexes and
normal sensation.
A medical question remains, however, as to whether an impairment based on loss of
range of motion would be appropriate in this case. The 100 degrees of hip flexion range of
motion reported by Dr. Carollo would result in a five percent leg impairment if a range of motion
approach was utilized.10 To properly resolve the conflict, the referee physician, Dr. Carollo,
must address his findings regarding hip flexion and specifically clarify his opinion as to an
impairment under the A.M.A., Guides. OWCP should note the reported range of motion
findings and the applicable provisions of the A.M.A., Guides with respect to an impairment
based on loss of range of motion and secure a probative medical opinion from the referee
physician that is sufficient to resolve the conflict. After such further development as OWCP
deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP for
further development of the medical evidence.

8

A.M.A., Guides 543-53.

9

Id. at 552.

10

A.M.A., Guides 549, Table 16-24. Under Table 16-24, hip flexion of 80 to 100 degrees is a “mild” leg
impairment of five percent.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 7, 2013 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-463
Issued: January 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
On December 14, 2010 appellant filed an appeal from a September 1, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) denying her recurrence and schedule
award claims. The Board assigned Docket No. 11-463.
On review of the case record submitted by OWCP, the Board finds that the record is
incomplete. OWCP accepted appellant’s January 7, 1991 traumatic injury claim for contusion of
the left shoulder in claim number xxxxxx610. The record reflects that appellant filed a claim for
a June 26, 2006 traumatic injury, which was accepted for right shoulder strain under File No.
xxxxxx551. OWCP subsequently combined File No. xxxxxx551 with the instant case, File No.
xxxxxx610. File No. xxxxxx551 became the master case number for this claim.
In a June 21, 2010 development letter, OWCP reported that appellant was not on limited
duty for any of the claims she had filed with OWCP and was released to full unrestricted duty on
August 3, 2006. The record demonstrates, however, that appellant accepted a U.S. Postal
Service light-duty job offer as a modified clerk on July 16, 2007. Appellant and her supervisor
stated that appellant had actually been on limited duty following the January 7, 1991 incident
until she was released from her assignment on May 22, 2010. In its September 1, 2010 decision,

OWCP did not address this discrepancy in the facts.1 It is unclear in the record forwarded to the
Board whether appellant was working a light-duty assignment, had returned to full unrestricted
duty, or whether her position was withdrawn by the employing establishment on May 22, 2010.
These questions must be clarified.
The record on appeal also appears incomplete because there are significant gaps in time
for documents submitted since the claim was filed on January 7, 1991. When presented with an
inadequate record, the Board must provide OWCP with an opportunity to provide full
information.2
Because the Board is unable to render a fully informed decision, the September 1, 2010
decision will be set aside and the case remanded. On remand, OWCP will undertake appropriate
development to reconstruct the case record. Following this and such further development as it
may deem necessary, OWCP shall issue a merit decision on appellant’s schedule award and
recurrence claims.

1

“Any discrepancies found must be clarified by obtaining the necessary factual evidence before the claim can be
properly adjudicated.” Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter
2.800.7(b)(1) (June 2011).
2

Richard Kendall, 43 ECAB 790 (1992).

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
schedule award decision dated September 1, 2010 and recurrence decision dated September 1,
2010 are set aside and the case remanded to OWCP for further proceedings consistent with this
decision.
Issued: January 25, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE STUDIES & ANALYSES AGENCY,
Washington, DC, Employer
__________________________________________

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Appearances:
Steven D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-811
Issued: January 24, 2007

Case Submitted on the Record

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

JURISDICTION
On February 21, 2006 appellant filed a timely appeal of a November 22, 2005 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
October 2, 2004 pursuant to 5 U.S.C. § 8106(c) on the grounds that she refused an offer of
suitable work.
FACTUAL HISTORY
On April 14, 1997 appellant filed an occupational disease claim alleging that she
sustained a back injury from throwing mail while in the performance of duty. The Office
accepted aggravation of degenerative disc disease. Appellant’s compensation was terminated by
decision dated October 2, 1998 on the grounds that she refused an offer of suitable work. She

returned to a light-duty job and filed a traumatic injury claim for a back injury on July 21, 1999
when she was getting onto a bus. Appellant stated that the step was high and she had to pull
herself up using the hand rail, causing back pain. The case records were administratively
combined and, following development of the evidence, the Office accepted aggravation of
spondylosis with myelopathy.
Appellant filed a recurrence of disability claim (Form CA-2a) commencing
November 7, 2001. She indicated that the date of the original injury was January 8, 1997.
Appellant began receiving compensation for wage loss as of November 7, 2001.
The attending physician, Dr. Gary Dennis, a neurosurgeon, opined that appellant was
totally disabled for work. He diagnosed lumbosacral radiculopathy and chronic pain syndrome.
The Office referred appellant for a second opinion examination by Dr. Robert Smith, an
orthopedic surgeon. In a report dated July 3, 2002, Dr. Smith provided a history and results on
examination. He diagnosed degenerative spondylosis and he opined that the employment-related
aggravations had resolved. Dr. Smith indicated that appellant could work full time with
restrictions as outlined in an OWCP-5c form. According to Dr. Smith, appellant was limited to
10 pounds lifting, 6 hours sitting and 4 hours of intermittent walking.
The Office determined a conflict in the medical evidence existed with respect to
appellant’s ability to work. Appellant was referred to Dr. Joseph Fermaglich, a Board-certified
neurologist, for a referee examination. By report dated February 3, 2003, Dr. Fermaglich
provided a history and reviewed medical evidence. He provided results on physical and
neurologic examination, diagnosing degenerative disease of the lumbar spine. Dr. Fermaglich
noted that appellant was taking pain medication and drove occasionally to the supermarket. He
stated, “No objective findings are present to confirm disability because only her subjective
complaints preclude her physical activities. My opinion is that objectively she should be able to
stand, walk, sit, turn and twist.” Dr. Fermaglich indicated that he had reviewed a job offer for a
secretary position and “no evidence for discogenic disease is present and the attached job offer
for secretary is an acceptable offer and should be satisfied in its entirety.” A work capacity
evaluation (Form OWCP-5c) was completed and indicated that appellant could work full time
with limitations.
In a letter dated February 24, 2004, the employing establishment offered appellant a fulltime position as a secretary (office automation). The Office, by letter dated April 14, 2004,
advised appellant that the offered position was considered suitable. Appellant was informed of
the provisions of 5 U.S.C. § 8106(c) and provided an opportunity to accept the position or
provide reasons for refusing within 30 days. Her representative submitted a May 20, 2004 letter
stating that appellant could not physically perform the position as she could not sit or walk for
extended periods. The representative also stated that appellant was using medication that
diminished her ability to concentrate and rendered her unable to drive.
By letter dated September 16, 2004, the Office found the reasons were insufficient and
appellant had 15 days to accept the position or her entitlement to compensation would be
terminated. Appellant submitted a September 26, 2004 letter stating that she was medically
unable to return to work.

2

In a decision dated October 15, 2004, the Office terminated compensation for wage loss
effective October 2, 2004 on the grounds that appellant had refused an offer of suitable work.
Appellant requested a hearing, which was held on September 20, 2005. She continued to submit
reports from Dr. Dennis, who opined that appellant remained totally disabled. In a July 12, 2005
report, submitted on September 22, 2005, Dr. Dennis stated that appellant was taking large doses
of Neurontin, which contributed to an inability to concentrate because of the sedative effects. He
continued to opine that appellant was totally disabled.
By decision dated November 22, 2005, the hearing representative affirmed the
October 15, 2004 decision. The hearing representative found that Dr. Fermaglich represented the
weight of the evidence regarding appellant’s work capacity and the offered job was suitable.
LEGAL PRECEDENT
5 U.S.C. § 8106(c) provides in pertinent part, “A partially disabled employee who …
(2) refuses or neglects to work after suitable work is offered ... is not entitled to compensation.”
It is the Office’s burden to terminate compensation under section 8106(c) for refusing to accept
suitable work or neglecting to perform suitable work.1 To justify such a termination, the Office
must show that the work offered was suitable.2 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.3
With respect to the procedural requirements of termination under section 8106(c), the
Board has held that the Office must inform appellant of the consequences of refusal to accept
suitable work and allow appellant an opportunity to provide reasons for refusing the offered
position.4 If appellant presents reasons for refusing the offered position, the Office must inform
the employee if it finds the reasons inadequate to justify the refusal of the offered position and
afford appellant a final opportunity to accept the position.5
It is well established that when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.6
ANALYSIS
The initial question presented is whether the offered job was medically suitable. There
was a conflict in the medical evidence between the attending physician, Dr. Dennis, and the
1

Henry P. Gilmore, 46 ECAB 709 (1995).

2

John E. Lemker, 45 ECAB 258 (1993).

3

Catherine G. Hammond, 41 ECAB 375, 385 (1990); 20 C.F.R. § 10.517(a).

4

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

5

Id.

6

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

3

second opinion physician, Dr. Smith, regarding appellant’s ability to work.7 Dr. Dennis opined
that appellant was totally disabled, while Dr. Smith found appellant could work full time with
restrictions.
Dr. Fermaglich, the referee examiner, provided results on examination and indicated that
he had reviewed the job offer for a secretary. He provided an unequivocal opinion that appellant
was capable of performing the job offered. Dr. Fermaglich explained that there were no
objective findings and no evidence of discogenic disease. The Board finds that he provided a
reasoned medical opinion indicating that the offered position of secretary was medically suitable.
As a referee examiner, his report is entitled to special weight and represents the weight of the
evidence.
The Office notified appellant of its finding that the secretary job offered was suitable and
offered appellant an opportunity to accept the position or provide reasons for refusing. Appellant
argued that she was not physically able to perform the position. This is a medical issue that was
resolved by Dr. Fermaglich. Appellant also asserted the medication she was taking rendered her
unable to concentrate or drive a vehicle. Dr. Fermaglich noted that appellant was taking
medications, including Neurontin, but he did indicate that appellant had been driving and he
provided no indication that the medications would prevent appellant from performing the job
duties.
In accord with established procedures, the Office notified appellant the offered reasons
were insufficient and provided appellant an additional 15 days to accept the position prior to
termination of compensation. The Board finds that the job offered was medical and vocationally
suitable, and the Office followed its procedures prior to termination of compensation.
Accordingly, the Board finds that the Office met its burden of proof to terminate compensation
for wage loss effective October 2, 2004 pursuant to 5 U.S.C. § 8106(c).
CONCLUSION
The Office met its burden of proof to terminate compensation October 2, 2004 on the
grounds that appellant had refused an offer of suitable work.

7

The Federal Employees’ Compensation Act provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make the examination. 5 U.S.C. § 8123(a). The implementing regulation states that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion of either a second
opinion physician or an Office medical adviser, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case. 20 C.F.R. § 10.321 (1999).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 22, 2005 is affirmed.
Issued: January 24, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5