United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, KANSAS CITY
POSTAL & DISTRIBUTION CENTER,
Kansas City, MO, Employer
__________________________________________

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Appearances:
Melford V. McCormick, for the appellant
Office of Solicitor, for the Director

Docket No. 07-1689
Issued: December 11, 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 June 11, 2007 appellant filed a timely appeal from the November 2, 2006 and
May 31, 2007 merit decisions of the Office of Workers’ Compensation Programs that denied
modification of previous decisions terminating her compensation benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof in terminating appellant’s
compensation benefits effective March 14, 2003; and (2) whether appellant met her burden of
proof in establishing continuing disability causally related to her employment after
March 14, 2003.
FACTUAL HISTORY
On January 14, 2003 appellant, then a 40-year-old mail processing clerk, filed a traumatic
injury claim alleging that she sustained bilateral shoulder injuries and right arm and wrist strains

on January 10, 2003 due to repetitive stress activities at work. She stopped work on January 10,
2003 and returned on January 14, 2003. The record reflects that appellant stopped work again on
January 28, 2003 and worked intermittently thereafter until March 14, 2003, when she reported
stopping work completely. The Office denied her claim on February 20, 2003. On March 13,
2003 appellant requested an oral hearing.
With her hearing request appellant submitted an April 24, 2003 note from Dr. S.R. Reddy
Katta, a Board-certified physiatrist, who diagnosed cervical and lumbar sprain, and tendinitis of
the right shoulder, elbow and wrist. Dr. Katta noted that appellant stopped work on January 28,
2003 and recommended that she return to work with restrictions on May 8, 2003. Appellant also
provided a February 13, 2003 report from Dr. Nick Navato, an osteopath, who diagnosed
musculoskeletal/myofascial shoulder pain, possible thoracic outlet impingement of the brachial
plexus, left greater than right lateral epicondylitis, chronic intermittent musculoskeletal pain,
right bicipital tendinitis and bilateral acromioclaviculitis. Dr. Navato noted that the employing
establishment assigned appellant to work on the machine on which she was working at the time
of her claimed injury, rather than to a light-duty position. In an April 24, 2003 report, Dr. Katta
noted the repetitive requirements of appellant’s job and diagnosed chronic cervical sprain with
right cervical paraspinal and posterior shoulder girdle muscle strain, tendinitis of both shoulders,
the right lateral humeral epicondylar area and right wrist, as well as chronic lumbosacral sprain
with associated right trochanteric bursitis. On May 7, 2003 he opined that appellant’s “upper
extremity problems seem to be part and parcel of upper extremity repetitive trauma disorder and
her lower back pain problem might also be work related.”
By decision dated March 18, 2004, the hearing representative remanded the case for the
Office to refer appellant for a second opinion examination.
On March 30, 2004 the Office referred appellant, along with a statement of accepted
facts, to Dr. Dale Dalenberg, a Board-certified orthopedic surgeon, for a second opinion
concerning the etiology and status of appellant’s medical conditions.
Dr. Dalenberg examined appellant and provided a report on May 31, 2004. He noted that
appellant reported having a gradual onset of symptoms beginning in December 2002, when she
returned to work on a mail processing machine after having worked as a window clerk.
Dr. Dalenberg explained that appellant’s symptoms culminated on January 10, 2003. Appellant
reported stopping work permanently on March 14, 2003 because the employing establishment
could no longer accommodate her need for a limited-duty job assignment. Dr. Dalenberg
indicated that appellant’s current complaints included right shoulder discomfort, right and left
lateral elbow pain, right wrist pain, numbness and tingling into the right index, ring and little
fingers. He reviewed the medical evidence and noted diagnostic testing, namely x-ray reports,
which revealed mild disc degeneration at C5-6, as well as slight focal loss of cervical lordosis at
C5-6. Dr. Dalenberg diagnosed mild C5-6 disc degeneration, bilateral/lateral epicondylitis of the
elbows and right shoulder rotator cuff tendinosis with bicipital tendinitis. He attributed
appellant’s cervical disc degeneration in part to a 1996 nonwork-related motor vehicle accident
and also explained that appellant’s shoulder and elbow tendinosis was “typically a degenerative
problem that may be temporarily aggravated by work duties, but is not necessarily caused by
work duties.” Dr. Dalenberg concluded that appellant’s upper extremity symptoms were caused
by a preexisting degenerative condition and that, while she may have experienced a temporary

2

aggravation of her condition due to her work duties beginning in December 2002, she had not
experienced a permanent, material change in her condition. He advised that appellant’s
employment did not cause a permanent aggravation of her preexisting conditions. Dr. Dalenberg
also noted that appellant had psychological factors affecting her subjective complaints and that
although she “has not worked since March 14, 2003 … she has a similar constellation of
symptoms now even in the absence of the workplace factors that allegedly only occurred over a
three-week period to cause her alleged injury.” He advised that appellant’s work restrictions
were due to “chronic nonwork-related conditions.” Dr. Dalenberg provided a work capacity
evaluation, also dated May 31, 2004, advising that appellant was capable of working eight hours
per day with restrictions.
By decision dated June 15, 2004, the Office accepted temporary aggravation of right
shoulder rotator cuff tendinitis, temporary aggravation of right arm bicipital tendinitis and
temporary aggravation of bilateral lateral epicondylitis of the elbows, which ceased by
January 13, 2003. On the same day, the Office denied appellant’s claim for compensation after
January 13, 2003, finding that the medical evidence did not show that her medical conditions
were due to her employment after that date.
The Office subsequently requested that Dr. Dalenberg address whether appellant’s
temporary aggravations had ceased and, if so, when. The Office inquired whether appellant’s
work restrictions were due to her accepted work-related conditions.
In a July 14, 2004 report, Dr. Dalenberg explained that appellant had several underlying
conditions “which can be temporarily aggravated on any given day by a variety of activities.”
He explained that appellant’s work-related temporary aggravations were a “minute-by-minute,
hour-by-hour, day-by-day phenomenon” but noted that her work-related aggravations could only
occur, by definition, on a day when she was in fact working. Since appellant stopped work for
the employing establishment on March 14, 2003, Dr. Dalenberg explained that any work-related
temporary aggravations of her underlying condition necessarily ceased on that day as well.
Appellant requested an oral hearing that was held on April 21, 2005. Following the
hearing, she submitted an April 28, 2003 report from Dr. Katta who explained that appellant had
chronic upper extremity repetitive trauma disorders, including shoulder and elbow tendinitis and
cervical paraspinal and posterior shoulder girdle muscle strain. Dr. Katta indicated that he first
saw appellant in 1989 and that her most recent shoulder and arm problems occurred in
January 2003. He noted appellant’s course of treatment in 2003 and 2004 and explained that her
upper extremity repetitive trauma disorder was a long-standing problem but noted that at the time
he examined appellant in January 2004, he considered her neck, shoulder and upper extremity
complaints work related. Dr. Katta advised that, if appellant continued to perform repetitive
activities, she would risk permanent aggravation of her condition.
By decision dated August 15, 2005, the hearing representative affirmed the Office’s
decision, modifying it to find that the temporary aggravation of her medical conditions ceased on
March 14, 2003.
On July 19, 2006 appellant requested reconsideration. She provided a March 15, 2005
report from Dr. Katta, who diagnosed chronic and continuing repetitive trauma disorder in the

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form of right shoulder tendinitis and cervical paraspinal and posterior shoulder girdle muscle
strain and right thoracic paraspinal muscle strain. Dr. Katta also noted evidence of bilateral
carpal tunnel syndrome. On October 28, 2005 Dr. Robert M. Murphy1 noted that appellant first
began her symptoms in 1992 and was diagnosed with bilateral carpal tunnel syndrome in 1998.
He related both her shoulder pain and the numbness, tingling and aching sensations in her hand
to her preexisting carpal tunnel syndrome.
By decision dated November 2, 2006, the Office denied modification of the hearing
representative’s August 15, 2005 decision.2
Thereafter, appellant submitted an October 20, 2006 report from Dr. Terence Pratt, a
Board-certified physiatrist, who noted her complaints of cervical and shoulder pain and tightness,
lateral right elbow pain with radicular components and numbness and tingling of the hands and
fingers. Dr. Pratt indicated that appellant denied having any of her present symptoms before
beginning work at the employing establishment. He noted that a July 2, 2003 magnetic
resonance imaging (MRI) scan revealed small disc herniations at C5-6 and C6-7 with mild
stenosis but no evidence of cord impingement. Dr. Pratt diagnosed cervicothoracic syndrome
with soft tissue involvement, including myofascial pain, small disc herniations at C5-6 and C6-7
without significant stenosis, bilateral upper extremity discomfort with bilateral shoulder
syndrome and bilateral/lateral epicondylitis. He explained that appellant’s symptoms originated
in the early 1990s and that she had a temporary aggravation of her condition beginning in
December 2002 “and continuing until significant aggravation occurring on January 10, 2003,
while performing job tasks and continuing to aggravate the condition until her last day of work
on February 28, 2003.” Dr. Pratt advised that appellant had permanent work restrictions caused
by her work activities and that it was “unlikely” that her symptoms would dissipate “just because
she has stopped performing the aggravating activities.” He indicated that appellant experienced
temporary aggravations when her job responsibilities changed, with the most recent temporary
aggravation beginning in December 2002 and lasting until February 28, 2003. However,
Dr. Pratt concluded that appellant’s temporary aggravation resolved when she ceased her
“vocationally-related activities.”
By decision dated May 31, 2007, the Office denied modification of its November 2, 2006
decision.3
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
1

The Board was unable to ascertain Dr. Murphy’s specialty based on the record.

2

The Board notes that the Office inadvertently indicated that it had terminated appellant’s compensation after
January 13, 2003, rather than March 14, 2003, as found by the hearing representative.
3

The Office denied modification of the termination of appellant’s benefits after January 13, 2003, not March 14,
2003 as the hearing representative held on August 15, 2005.
4

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

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establishing that the disability ceased or that it was no longer related to the employment.5 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6 The fact that the Office accepts
appellant’s claim for a specified period of disability does not shift the burden of proof to
appellant to show that he or she is still disabled. The burden is on the Office to demonstrate an
absence of employment-related disability in the period subsequent to the date when
compensation is terminated or modified.7
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective March 14, 2003.
The Board notes that the hearing
representative’s August 15, 2005 decision, modified the Office’s initial decision, finding that
appellant’s temporary aggravation and consequently her entitlement to compensation benefits
ceased when she stopped work on March 14, 2003, as Dr. Dalenberg supported in his July 14,
2004 report.
In determining that appellant’s work-related medical condition ceased on March 14,
2003, the Office relied upon Dr. Dalenberg’s May 31 and July 14, 2004 reports. On May 31,
2004 Dr. Dalenberg concluded that appellant had a temporary aggravation of several preexisting
conditions during the weeks from December 2002 through January 10, 2003. He also noted that
appellant reported stopping work on March 14, 2003. Dr. Dalenberg opined that she had not
experienced a permanent or material change in her condition, but merely a temporary
exacerbation caused by her work duties. He explained that appellant’s conditions were
degenerative in nature and that, while her job responsibilities may have aggravated her condition
in the short-term, they did not cause her underlying degenerative conditions or result in any
permanent aggravation of the degenerative disease. The Office requested additional information
from Dr. Dalenberg, inquiring when appellant’s work-related temporary aggravation ceased. In
a July 14, 2004 clarification report, Dr. Dalenberg explained that any work-related temporary
aggravation would occur when appellant was actually performing work activities. Because she
had stopped work by March 14, 2003, Dr. Dalenberg concluded that her work-related temporary
aggravation necessarily stopped as of that date.
Appellant provided several medical reports from Dr. Katta, dated April 24 and 28, 2003
and from Dr. Navato, dated February 13, 2003. However, while both doctors supported causal
relationship between appellant’s employment and the aggravation of her medical conditions,
neither adequately addressed her continuing employment-related disability on or after
March 14, 2003. The Board finds that Dr. Katta’s and Dr. Navato’s reports are of limited
probative value regarding appellant’s status on and after March 14, 2003. The weight of the
medical evidence rests with Dr. Dalenberg, who provided a thorough report of his examination

5

Id.

6

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

Patrick P. Curran, 47 ECAB 247 (1995); Dawn Sweazey, 44 ECAB 824 (1993).

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and rationale for his conclusion that the aggravation of appellant’s medical conditions was
temporary and ceased by March 14, 2003.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he or she had an employment-related disability, which continued after termination of
compensation benefits.8
The medical evidence required to establish causal relationship is 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
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.9
ANALYSIS -- ISSUE 2
The Board finds that appellant did not meet her burden of proof in establishing that she
was entitled to compensation benefits.
After her benefits were terminated effective
March 14, 2003, appellant submitted several additional medical reports. Dr. Katta’s March 15,
2005 report diagnosed several upper back and upper extremity conditions but did not provide an
opinion on appellant’s continuing employment-related disability after March 14, 2003.
Dr. Murphy’s October 28, 2005 report noted that appellant’s conditions were long-standing and
preexisting, having first arisen in 1992. He related both her shoulder pain and numbness,
tingling and aching of the hands to preexisting carpal tunnel syndrome, which is not an accepted
condition in the present claim.10 Dr. Murphy did not support that appellant had continuing
employment-related disability after March 14, 2003. Rather, he attributed her back and upper
extremity symptoms to a preexisting condition, her carpal tunnel syndrome, which was
diagnosed in 1998.
Appellant also submitted an October 20, 2006 report from Dr. Pratt who noted
appellant’s complaints of cervical spine and upper extremity pain but opined that her workrelated temporary aggravation ceased as of February 28, 2003. Dr. Pratt explained that
appellant’s symptoms first arose in the early 1990s and that she experienced a work-related
temporary aggravation of her conditions in December 2002. He also indicated that appellant had
8

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

9

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

10

The burden of proving conditions not yet accepted rests with appellant. See Jaja K. Asaramo, 55 ECAB
200 (2004).

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permanent work restrictions caused by her employment and that her symptoms would likely
continue even though she stopped work. However, Dr. Pratt did not support continuing workrelated disability after March 14, 2003 and he did not provide any medical rationale to support
his conclusion that ongoing symptoms and work restrictions were attributable to appellant’s
employment, nor did he attempt to explain the apparent inconstancy in his report where he
indicated both that appellant’s work-related aggravation ceased on February 28, 2003 and that
she had ongoing symptoms and permanent restrictions attributable to her employment activities.
Therefore his October 20, 2006 report is insufficient to meet appellant’s burden of proof in
establishing continuing work-related conditions or disability after March 14, 2003.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective March 14, 2003 and that appellant did not meet her burden of
proof in establishing that she had continuing work-related disability after that date.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2007 and November 2, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 11, 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

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

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

Docket No. 19-0313
Issued: January 15, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 28, 2018 appellant, through counsel, filed a timely appeal from a
September 26, 2018 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.3

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.

3
The Board notes that following the September 26, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish continuing disability
on or after July 3, 2010 causally related to her November 7 and December 19, 1989 employment
injuries.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decisions and orders are incorporated herein by reference. The
relevant facts are as follows.
Appellant, then a 29-year-old flexible letter carrier, filed two traumatic injury claims in
1989 that have since been administratively combined. She filed the initial traumatic claim (Form
CA-1) on November 7, 1989, alleging that she sustained a back injury that day when she stumbled
while walking up steps. OWCP adjudicated the November 1989 claim under OWCP File No.
xxxxxx943. Appellant filed the second traumatic injury claim (Form CA-1) on December 26,
1989, alleging that she injured her back on December 19, 1989 while delivering parcels. The
December 1989 claim was assigned OWCP File No. xxxxxx838. OWCP accepted that claim for
lumbosacral strain and a herniated L4-5 disc with subsequent urinary incontinence. Appellant
underwent lumbar surgery on February 3, 1992, and returned to modified duty in January 1993.
She continued modified-duty work until December 11, 2003, when she stopped work and was paid
wage-loss compensation on the supplemental rolls.
OWCP paid appellant wage-loss
compensation on the periodic compensation rolls effective May 14, 2006.
By decision dated June 30, 2010, OWCP terminated appellant’s wage-loss compensation,
effective July 3, 2010. Appellant thereafter submitted multiple requests for reconsideration. By
decisions dated January 13 and June 2, 2011, July 9, 2012, and October 16, 2013, OWCP denied
modification of its prior decisions. On January 3, 2014 appellant appealed to the Board from the
October 16, 2013 decision.
By decision dated July 7, 2014, the Board affirmed the October 16, 2013 decision.5 The
Board found that the weight of the medical evidence rested with the opinion of Dr. Mukund
Komanduri, a Board-certified orthopedic surgeon, in a capacity as an OWCP second opinion
physician, who advised that appellant could return to full-time modified duty. The Board
concluded that OWCP had met its burden of proof to terminate appellant’s wage-loss
compensation, effective July 3, 2010, and further found that she had not met her burden of proof
to establish continuing employment-related disability on or after that date.
On July 21, 2014 appellant, through counsel, requested reconsideration. In an attached
brief, counsel contended that OWCP had not followed its procedures, and that the case required

4

Docket No. 14-0526 (issued July 7, 2014); Docket No. 15-0659 (issued September 15, 2016); Order Remanding
Case, Docket No. 19-0313 (issued September 4, 2019); Order Setting Aside Board Order and Reinstating Appeal,
Docket No. 19-0313 (issued January 3, 2020).
5

Docket No. 14-0526, id.

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further development.6
reconsideration request.

By decision dated October 15, 2014, OWCP denied appellant’s

The record contains copious medical evidence submitted following OWCP’s October 16,
2013 decision.7
An October 6, 2013 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
demonstrated a stable surgical fusion. An August 14, 2014 computerized tomography (CT) scan
of the lumbar spine showed stable postoperative changes and multilevel degenerative disc disease.
A February 24, 2015 right hip x-ray and September 18, 2015 MRI scan of the pelvis were negative.
Dr. Konstantin Slavin, a Board-certified neurosurgeon, provided treatment notes dated
March 3, 2014 to May 14, 2018. In a March 3, 2014 report, he advised that appellant had not been
able to return to normal duties for medical reasons. Dr. Slavin noted complaints of chronic back
and leg pain and advised that she needed to have her spinal cord stimulator replaced. He diagnosed
multilevel lumbar spondylosis and lumbar stenosis with persistent lumbar radiculopathy and failed
back syndrome. Dr. Slavin opined that these were related to her federal employment, and advised
that she should avoid any kind of activity that worsened her pain, particularly heavy lifting,
carrying heavy objects, and standing for long periods and, therefore, could not perform letter
carrier duties. By report dated November 27, 2017, he described appellant’s difficulties with
spinal cord stimulators and advised that since November 2015, when a spinal cord stimulator was
removed, her pain had not been addressed properly. Dr. Slavin advised that her activity remained
very limited due to chronic pain and asked for authorization of a new spinal cord stimulator. On
May 14, 2018 he advised that appellant’s pain remained her major issue and she needed a spinal
cord stimulator.
A number of anesthesiologists practicing pain management saw appellant from May 15,
2014 to May 19, 2015.
In treatment notes dated October 1, 2013 to February 14, 2015, Dr. Ervin Kocjancic, a
urologist, noted a history of mixed incontinence and a urethral lesion that had been resected. On
August 27, 2014 he noted diagnoses of neurogenic bladder status post spinal fusion surgery,
treated with Botox, and advised that appellant had an unspecified urethral stricture. Appellant had
urethroplasty for hypospadic urethra on October 9, 2014.
Appellant, through counsel, appealed to the Board on January 30, 2015. By decision dated
September 15, 2016, the Board found that the brief submitted on reconsideration contained
relevant legal arguments, not previously considered by OWCP, as to whether it had properly
terminated appellant’s wage-loss compensation and whether she had continuing disability. The
Board concluded that appellant was entitled to a review of the merits of her claim and remanded
the case to OWCP for an appropriate decision.8

6

The brief had previously been submitted to the Board.

7

Docket No. 14-0526, supra note 4.

8

Docket No. 15-0659, supra note 4. During the pendency of this appeal, by decision dated May 21, 2015, OWCP
granted appellant a schedule award for nine percent permanent impairment of the left lower extremity.

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By decision dated September 26, 2018, OWCP reviewed the merits of appellant’s claim,
but denied modification of its October 16, 2013 decision finding that Dr. Komanduri had clearly
indicated that he had reviewed the DVDs.
LEGAL PRECEDENT
Once OWCP meets its burden of proof to terminate a claimant’s compensation benefits,
the burden shifts to the claimant to establish that he or she has continuing disability causally related
to the accepted employment injury.9 To establish causal relationship between the condition as well
as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background, supporting
such a causal relationship.10 A claimant must establish by the weight of the reliable, probative,
and substantial evidence that he or she had employment-related disability which continued after
termination of compensation benefits.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish continuing
disability on or after July 3, 2010 causally related to her November and December 1989
employment injuries.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s October 16, 2013 decision because the Board
considered that evidence in its July 7, 2014 decision. Findings made in prior Board decisions are
res judicata absent any further review by OWCP under section 8128 of FECA.12
Neither appellant’s pain management anesthesiologists nor Dr. Kocjancic, her attending
urologist, provided an opinion regarding whether she could perform modified duties. They did
not reference appellant’s ability to return to work or note a period of disability. As these physicians
have not provided an opinion on causal relationship between appellant’s continuing disability from
work and her accepted employment injuries, their opinions are of no probative value and are
insufficient to establish the claim.13
Only Dr. Slavin voiced an opinion regarding appellant’s work capacity and advised that
she had not been able to return to normal duties for medical reasons. The Board, however, finds
that his opinion does not contain sufficient medical rationale to establish that appellant had
continuing disability on or after July 13, 2010, causally related to the accepted November and
December 1989 employment injuries, accepted for lumbosacral strain and a herniated L4-5 disc
with subsequent urinary incontinence. While Dr. Slavin diagnosed multilevel lumbar spondylosis
and lumbar stenosis with persistent lumbar radiculopathy and failed back syndrome, and opined
9

T.W., Docket No. 18-1573 (issued July 19, 2019).

10

Id.

11

O.W., Docket No. 19-0316 (issued June 25, 2019).

12

See A.L., Docket No. 19-0285 (issued September 24, 2019).

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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that these were related to her federal employment, none of these conditions have been accepted as
due to the 1989 employment injuries.14 As Dr. Slavin provided no rationale explaining how
physiologically the November and December 1989 incidents caused or contributed to the abovenoted diagnosed conditions, his opinion is insufficient to meet appellant’s burden of proof.15
Moreover, while he advised that appellant should avoid any kind of activity that worsened her
pain, particularly heavy lifting, carrying heavy objects, and standing for long periods such that she
could not perform letter carrier duties, appellant had been working modified duty when she stopped
work. On May 14, 2018 Dr. Slavin advised that appellant’s pain remained her major issue and
that she needed a spinal cord stimulator. In essence, he only provided a conclusory opinion in
which he opined that appellant could not work, primarily due to pain. Dr. Slavin failed to explain
how this opinion was supported by objective findings of record.16 The Board finds that his opinion
is of limited probative value because he has not provided medical rationale in support of his
opinion on continuing work-related disability.17 A medical opinion not fortified by medical
rationale is of diminished probative value.18
The record also includes lumbar spine MRI and CT scans, an MRI scan of the pelvis, and
a right hip x-ray. The Board has previously held that diagnostic studies lack probative value as
they do not address causal relationship.19
The Board finds that the record lacks rationalized medical evidence sufficient to meet
appellant’s burden of proof to establish that she has continuing disability on or after July 3, 2010
causally related to the accepted 1989 injuries.20 Appellant, therefore, has not met her burden of
proof.21
On appeal counsel argues that in its September 26, 2018 decision, OWCP simply restated
its prior analysis and ignored the Board’s prior directive in its September 15, 2016 decision. By
that decision, the Board remanded the case for consideration of the merits followed by an
appropriate merit decision. OWCP subsequently issued its September 26, 2018 merit decision
which denied modification of its prior decision. As explained above, the Board finds that OWCP
properly evaluated the evidence of record and found that appellant had not met her burden of proof
to establish continuing disability on or after July 3, 2010 causally related to her accepted
employment injuries.

14

L.S., Docket No. 19-0959 (issued September 24, 2019).

15

Id.

16

L.G., Docket No. 19-0142 (issued August 8, 2019).

17

See T.W., supra note 9.

18

C.T., Docket No. 19-0508 (issued September 5, 2019).

19

F.H., Docket No. 18-0160 (issued August 23, 2019).

20

T.W., supra note 9.

21

L.S., supra note 14.

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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 continuing
disability on or after July 3, 2010 causally related to her November 7 and December 19, 1989
employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Covington, KY, Employer
__________________________________________

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

Docket No. 08-995
Issued: November 7, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 19, 2007 and January 25, 2008 merit decisions denying
modification of a wage-earning capacity determination. 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 denied modification of its determination of
appellant’s wage-earning capacity.
FACTUAL HISTORY
The Office accepted that on April 26, 2003 appellant, then a 52-year-old part-time,
temporary relief carrier,1 sustained a left humerus arm fracture, right pelvis fracture, closed
dislocation of the right hip, cracked ribs and deep vein thrombosis of the right leg due to a
1

Appellant worked only three days per week at the time of his injury.

vehicular accident on that date.
compensation for disability.2

He stopped work on April 26, 2003 and the Office paid

On January 12, 2004 appellant returned to work for the employing establishment in a
limited-duty position as a modified temporary carrier on a part-time basis. He worked the same
number of hours as he did around the time he was injured. The duties of the modified temporary
carrier position involved such duties as processing address sequence cards, filing mail, carrying
case labels and delivering mail. On March 15, 2004 Dr. Michael Archdeacon, an attending
Board-certified orthopedic surgeon, provided permanent restrictions of no lifting more than 10
pounds above the shoulder with the left arm, no reaching above the shoulder with the left arm for
more than one hour per day and no lifting any objects weighing more than 20 pounds.3
In a June 28, 2004 decision, the Office granted appellant a schedule award for a 26
percent permanent impairment of his left arm and a 28 percent permanent impairment of his right
leg. The award ran for 161.76 weeks from March 29, 2004 to May 5, 2007. In September 20,
2005 and July 14, 2006 decisions, the Office affirmed its June 28, 2004 decision.
In a March 20, 2006 decision, the Office retroactively reduced appellant’s compensation
to zero finding that his actual earnings as a modified temporary carrier since January 2004 fairly
and reasonably represented his wage-earning capacity. It noted that Office procedure provides
for a retroactive determination where, as in the present case, an employee has worked for at least
60 days, the employment fairly and reasonably represents the employee’s wage-earning capacity,
and work stoppage did not occur due to any change in the employee’s injury-related condition.
On June 1, 2007 the Office received a Form CA-7 in which appellant claimed
compensation for temporary total disability beginning May 6, 2007. Appellant indicated that his
schedule award expired on May 5, 2007 and that he was disabled due to arthritis in every part of
his body as a direct result of the April 26, 2003 vehicular accident.
In an April 13, 2006 note, Dr. Gregory P. Weckenbrock, an attending Board-certified
family practitioner, stated that appellant was involved in a motor vehicle accident on
April 26, 2003. He noted, “Since this time he has suffered from ankle, knee and wrist pain. He
has developed arthritis in these areas as a direct result of this accident.” In an April 19, 2006
note, Dr. Weckenbrock stated, “The arthritis pain that he suffers from in his neck, ankles, knees,
left hand and wrist is a direct result of the auto[mobile] accident in which he was involved.” In a
December 14, 2006 functional capacities form, he indicated that appellant was totally disabled
due to sporadic flare ups of arthritis that were out of his control.
In a June 11, 2007 letter, the Office advised that there were only three grounds to warrant
modification of a formal loss of wage-earning capacity decision: (1) the original rating was in
error; (2) the claimant was self-rehabilitated; or (3) the claimant’s employment-related medical
2

On April 28, 2003 appellant underwent an open reduction and internal fixation of his left proximal humerus
fracture. On May 1, 2003 he underwent surgery for his right pelvis and hip fractures. The procedures were
authorized by the Office.
3

The physical requirements of the modified temporary carrier position conformed to the work restrictions of
Dr. Archdeacon.

2

condition had worsened (as in a recurrence). Appellant was further advised that, if he was
claiming his employment-related medical condition had worsened, he needed to submit objective
physical findings and medical reasoning from his physician demonstrating a material worsening
of his accepted conditions. Appellant was afforded 30 days to submit additional evidence in
support of his claim.
The employing establishment confirmed that appellant had been a temporary employee
and that his temporary appointment had ended. Appellant did not renew his appointment and
stopped work while receiving schedule award compensation.
In a July 19, 2007 decision, the Office denied modification of its March 20, 2006 wageearning capacity decision. It found that appellant had not submitted medical evidence
establishing that his employment-related condition had changed or worsened to the point that he
was incapable of performing the modified temporary carrier position. The Office found that the
reports of Dr. Weckenbrock did not show that appellant’s employment-related conditions had
worsened. It further found that appellant had not been retrained or otherwise vocationally
rehabilitated and had not shown that the original determination was in fact erroneous. The
Office found that, therefore, appellant’s compensation should remain at the previously
established rate.
Appellant disagreed with the Office’s decision and, through his attorney, requested a
telephone hearing with an Office hearing representative. The hearing was conducted on
November 13, 2007. Appellant testified that following his April 26, 2003 injury he returned to
work in January 2004 and worked until April 8, 2006. After his physician addressed that he had
arthritis, appellant did not go back to work because he felt that the employing establishment was
not following his restrictions. Appellant’s attorney advised appellant to file a claim alleging that
the arthritis was a consequence of his accepted condition but he had not done so. Appellant’s
term as a modified temporary carrier came due every May and he had time left on his term at the
time he stopped work. The Office hearing representative advised appellant and his attorney that
the record would be held open for 30 days to allow them the opportunity to submit additional
evidence.4
In a January 25, 2008 decision, the Office hearing representative affirmed the July 19,
2007 decision denying appellant’s request for modification of the Office’s 2006 wage-earning
capacity determination. The Office hearing representative found it had not been shown that there
was a material change in the nature and extent of the employment-related condition, that
appellant had been vocationally rehabilitated or that the original determination was in fact
erroneous.
LEGAL PRECEDENT
Once a loss of wage-earning capacity is determined, a modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
employment-related condition, the employee has been retrained or otherwise vocationally
4

Appellant submitted an October 2, 2003 work restrictions form and a description of the modified temporary
carrier position.

3

rehabilitated or the original determination was in fact erroneous.5 The burden of proof is on the
party attempting to show the award should be modified.6
Section 8115(a) of the Federal Employees’ Compensation Act provides that the “wageearning capacity of an employee is determined by his actual earnings if his actual earnings fairly
and reasonably represent his wage-earning capacity.”7 The Board has stated, “Generally, wages
actually earned are the best measure of a wage-earning capacity and in the absence of evidence
showing that they do not fairly and reasonably represent the injured employee’s wage-earning
capacity, must be accepted as such measure.”8 However, wage-earning capacity may not be
based on an odd-lot or make-shift position designed for an employee’s particular needs or a
position that is seasonal in an area where year-round employment is available.9 Wage-earning
capacity may only be based on a temporary or part-time position if the position held by the
employee at the time of injury was a temporary or part-time position.10
ANALYSIS
The Office accepted that on April 26, 2003 appellant, then a part-time, temporary relief
carrier, sustained a left humerus arm fracture, right pelvis fracture, closed dislocation of the right
hip, cracked ribs and deep vein thrombosis of the right leg due to a vehicular accident on that
date.11 In a March 20, 2006 decision, it retroactively reduced appellant’s compensation to zero
finding that his actual earnings as a modified temporary carrier since January 2004 fairly and
reasonably represented his wage-earning capacity.
The Board finds that appellant did not submit any evidence to show that the Office’s
original determination with regard to his wage-earning capacity was erroneous. In the present
case, the Office based appellant’s loss of wage-earning capacity on a determination that his
actual earnings as a modified temporary carrier fairly and reasonably represented his wage5

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

6

Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

7

5 U.S.C. § 8115(a).

8

Floyd A. Gervais, 40 ECAB 1045, 1048 (1989); Clyde Price, 32 ECAB 1932, 1934 (1981). Disability is
defined in the implementing federal regulations as “the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury.” (Emphasis added.) 20 C.F.R. § 10.5(f). Once it is
determined that the actual wages of a given position represent an employee’s wage-earning capacity, the Office
applies the principles enunciated in Albert C. Shadrick, 5 ECAB 376 (1953), in order to calculate the adjustment in
the employee’s compensation.
9

See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.7a(1), (2) (July 1997).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a(3) (July 1997).
11

On April 28, 2003 appellant underwent an open reduction and internal fixation of his left proximal humerus
fracture. On May 1, 2003 he underwent surgery for his right pelvis and hip fractures. The procedures were
authorized by the Office.

4

earning capacity. This determination was consistent with section 8115(a) of the Act which
provides that the wage-earning capacity of an employee is determined by his actual earnings if
his actual earnings fairly and reasonably represent his wage-earning capacity.12 The Office
properly noted that appellant had received actual earnings as a modified temporary carrier for
more than 60 days in that he had been working in the position since beginning January 12, 2004
when the Office issued its March 20, 2006 decision. The modified temporary carrier position
was not an odd-lot or make-shift position designed for appellant’s particular needs or that it was
seasonal in nature.13 The position was a part-time, temporary position but wage-earning capacity
may be based on a part-time, temporary position where, as in the present case, the position the
employee held when injured was also part time and temporary in nature.14 The Board finds that
the evidence does not show that appellant’s actual earnings as a modified temporary carrier did
not fairly and reasonably represent his wage-earning capacity and the Office properly adjusted
his compensation based on this wage-earning capacity determination.15 For these reasons,
appellant has not shown that the Office’s original determination with regard to his wage-earning
capacity was erroneous.
Appellant alleged that there was a material change in the nature and extent of his
employment-related condition. However, he did not submit rationalized medical evidence
explaining why an employment-related condition prevented him from performing the temporary
carrier position.16
Appellant submitted an April 13, 2006 note in which Dr. Weckenbrock, an attending
Board-certified family practitioner, stated that he was involved in a motor vehicle accident on
April 26, 2003. Dr. Weckenbrock noted, “Since this time he has suffered from ankle, knee and
wrist pain. He has developed arthritis in these areas as a direct result of this accident.” In an
April 19, 2006 note, Dr. Weckenbrock stated, “The arthritis pain that he suffers from in his neck,
ankles, knees, left hand and wrist is a direct result of the auto[mobile] accident in which he was
involved.”17
These reports do not establish that there was a material change in the nature and extent of
appellant’s employment-related condition. The Office has not accepted that appellant sustained
12

See supra note 7 and 8 and accompanying text.

13

See James D. Champlain, supra note 9; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.7a(1), (2) (July 1997).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a(3) (July 1997).
15

See Clarence D. Ross, 42 ECAB 556, 561-62 (1991). The retroactive determination was appropriate because
appellant had worked for at least 60 days, the employment fairly and reasonably represented appellant’s wageearning capacity, and no work stoppage occurred due to any change in appellant’s injury-related condition. See
supra note 12 and accompanying text. The Office properly applied the principles enunciated in Albert C. Shadrick,
supra note 8, in order to calculate the adjustment in appellant’s compensation.
16

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989).

17

In a December 14, 2006 functional capacities form, Dr. Weckenbrock indicated that appellant was totally
disabled due to sporadic flare ups of arthritis that were out of his control.

5

arthritis due to the April 26, 2003 accident. Dr. Weckenbrock’s opinion is of limited probative
value because he did not provide a well-rationalized opinion relating appellant’s arthritis to the
April 26, 2003 employment injury.18 He did not provide any detailed discussion of appellant’s
factual and medical history, provide notable findings on examination or explain how appellant’s
arthritis could be employment related. Such medical rationale is especially necessary in the
present case as appellant’s arthritis apparently affected body parts other those injured in the
April 26, 2003 accident.19
For these reasons, appellant did not meet his burden of proof to modify the Office’s
determination of his wage-earning capacity.
CONCLUSION
The Board finds that the Office properly denied modification of its determination of
appellant’s wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 25, 2008 and July 19, 2007 decisions are affirmed.
Issued: November 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
18

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
19

Moreover, appellant has not been retrained or otherwise vocationally rehabilitated such that his work as a
modified temporary carrier would not be representative of his wage-earning capacity.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. MARINE CORPS, MARINE CORPS
LOGISTICS BASE, Albany, GA, Employer
__________________________________________

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

Docket No. 09-321
Issued: December 30, 2009

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 November 13, 2008 appellant filed a timely appeal from a June 19, 2008 nonmerit
decision denying his request for a review of the written record and a July 16, 2008 nonmerit
decision denying his request for reconsideration as it was untimely and failed to demonstrate
clear evidence of error. He also appeals August 20 and October 15, 2008 nonmerit decisions
denying his requests for review of the written record. As there is no merit decision issued within
one year of the appeal, the Board lacks jurisdiction to review the merits of this case.1
ISSUES
The issues are: (1) whether the Office, in its June 19, 2008 decision, properly denied
appellant’s request for review of the written record under 5 U.S.C. § 8124; (2) whether it
properly denied his request for reconsideration as it was untimely and did not establish clear
evidence of error; and (2) whether the Office, in its August 20 and October 15, 2008 decisions,
properly denied appellant’s requests for review of the written record under section 8124.

1

20 C.F.R. 501.2(c), 501.3.

FACTUAL HISTORY
On August 7, 2001 appellant, then a 46-year-old heavy mobile mechanic, filed a claim
alleging that on August 6, 2001 he sustained an injury to his lower left back and left leg in the
performance of duty. The Office accepted the claim for lumbar strain.
On July 3, 2002 appellant filed a claim for a schedule award. In progress reports dated
April 29 and July 22, 2002, Dr. J. Kenneth Burkus, a Board-certified orthopedic surgeon, found
that he had no permanent impairment. By decision dated August 19, 2002, the Office denied
appellant’s claim for a schedule award.
On September 3, 2002 appellant requested a review of the written record. In a decision
dated January 23, 2003, the Office hearing representative affirmed the August 19, 2002
decision.2 The hearing representative noted that there was no medical evidence showing that
appellant had a permanent impairment due to his August 6, 2001 injury to his lower back.
On April 11, 2007 appellant appealed to the Board. In an order dated April 28, 2008, the
Board dismissed his appeal as there was no reviewable decision.3
On May 13, 2008 appellant requested a review of the written record.4 He submitted a
January 10, 2005 report from Dr. Patrick A. Griffith, a Board-certified neurologist, who
diagnosed chronic post-traumatic back pain and right lumbosacral radiculopathy at L4-5 and S1.
Dr. Griffith listed range of motion findings for the back and provided work restrictions.
Appellant further submitted a September 21, 2001 pain management report and a September 29,
2004 magnetic resonance imaging (MRI) scan study. In a statement dated May 5, 2008, he noted
that the Office denied his schedule award claim based on Dr. Burkus’ April 29, 2002 report
finding that he had no impairment. Appellant argued that the relevant issue was whether
Dr. Burkus properly diagnosed his condition. He indicated that he was challenging the Board’s
order dismissing his appeal.
By decision dated June 19, 2008, the Office denied appellant’s request for a review of the
written record under section 8124. It noted that he had previously received a review of the
written record and thus was not entitled to either an oral hearing or another review of the written
record on the same issue. The Office exercised its discretion and found that the matter could be
equally well addressed by appellant submitting evidence showing that he had a permanent
impairment due to his August 6, 2001 employment injury.
2

The employing establishment terminated appellant effective December 13, 2004 for misconduct.

3

Order Dismissing Appeal, Docket No. 07-1313 (issued April 28, 2008). In October 2004 appellant filed a
recurrence of disability claim on July 20, 2004 causally related to his August 6, 2001 work injury. As he claimed
new work factors, the Office adjudicated the claim as a new injury and assigned the file number xxxxxx141. The
Board obtained the case records for file numbers xxxxxx141 and xxxxxx248 and noted that there was no decision of
the Office issued within one year in either file number.
4

On September 29, 2008 appellant filed an appeal with the Board of a purported April 29, 2008 Office decision.
In an order dated September 29, 2008, the Board dismissed his appeal at his request. Order Dismissing Appeal,
Docket No. 08-1575 (issued September 29, 2008).

2

On June 21, 2008 appellant requested reconsideration of a purported March 28, 2007
decision. In an accompanying statement, he discussed an April 18, 2002 injury. On June 25,
2008 appellant related that he was requesting reconsideration of a March 28, 2007 decision
because his supervisor did not file his April 18, 2002 traumatic injury claim. He submitted
medical evidence from 2001 and 2002. By letter dated July 3, 2008, the Office informed
appellant that there was no decision dated March 28, 2007 in file number xxxxxx248. It
requested that he clarify his request for reconsideration. In a July 10, 2008 response, appellant
related that he wanted the Office to reopen file number xxxxxx248 for medical treatment. He
further requested reconsideration of the January 23, 2003 hearing representative’s decision based
on evidence submitted July 1, 2008. Appellant submitted a February 6, 2002 MRI scan study of
the lumbar spine.
By decision dated July 16, 2008, the Office denied appellant’s request for reconsideration
of its January 23, 2003 decision as the request was untimely and did not demonstrate clear
evidence of error.
On July 26, 2008 appellant requested a review of the written record on the July 16, 2008
decision. He argued that his August 6, 2001 work injury caused more than a lumbar strain.
Appellant also described other file numbers.5
By decision dated August 20, 2008, the Office denied appellant’s request for a review of
the written record as he had previously requested reconsideration under 5 U.S.C. § 8128.6 It
noted that he could again request reconsideration and submit evidence showing that he had a
permanent impairment due to his work injury.
On August 22, 2008 appellant again requested a review of the written record regarding
the July 16, 2008 decision. He maintained that the issue was whether he sustained a recurrence
of disability due to his August 6, 2001 work injury.7 By decision dated October 15, 2008, the
Office denied appellant’s request for a review of the written record as he had previously received
reconsideration under section 8128.
On appeal appellant argues that his supervisor knowingly made his case appear
fraudulent. He referenced an August 7, 2001 e-mail message from his supervisor challenging
that he sustained an injury on August 6, 2001. Appellant also asserted that the employing
establishment referred him to a physician who found that he could work when he should have
placed him on light duty.

5

On August 11, 2008 appellant requested that the Office reopen file number xxxxxx248 for medical treatment.
In a statement dated August 12, 2008, he argued that it should have been adjudicated as a short form closure.
6

The record indicates that on April 12, 2005 appellant was convicted of aggravated assault, terroristic threats and
theft of government property on August 19, 2004 at the employing establishment.
7

On September 10, 2008 appellant requested reconsideration of the July 16, 2008 merit decision.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of the Federal Employees’ Compensation Act8 provides that a
claimant not satisfied with a decision of the Office is entitled, upon timely request, to a hearing
before a representative of the Office.9 The Office’s regulations allow claimants to exercise this
statutory right by requesting either an oral hearing or a review of the written record.10 The Board
has held that the Office, in its broad discretionary authority in the administration of the Act, has
the power to hold hearings in certain circumstances where no legal provision was made for such
hearings and that the Office must exercise this discretionary authority in deciding whether to
grant a hearing.11 Specifically, the Board has held that the Office has the discretionary authority
to grant or deny a hearing request on a claim involving an injury sustained prior to the enactment
of the 1966 amendments to the Act which provided the right to a hearing, when the request is
made after the 30-day period for requesting a hearing, and when the request is for a second
hearing on the same issue.12 The Board has held that as the only limitation on the Office’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deduction from established facts.
ANALYSIS -- ISSUE 1
On August 19, 2002 the Office denied appellant’s claim for a schedule award. On
September 3, 2002 he requested a review of the written record. Following a review of the
written record, in a decision dated January 23, 2003, a hearing representative affirmed the
August 19, 2002 schedule award decision. On May 13, 2008 appellant again requested a review
of the written record. By decision dated January 19, 2008, the Office denied his request for a
review of the written record as he had previously received a review of the written record.
The Office properly determined that appellant was not entitled to a second hearing under
section 8124 as a matter of right. A hearing takes the format of either an oral hearing or a review
of the written record.13 As appellant previously received a review of the written record on
January 23, 2003, he was not entitled to a subsequent review of the written record on the same
issue.14 Though he was not entitled to a review of the written record as a matter of right, the
Office properly conducted a review of his request within its discretion and denied the request for
a discretionary hearing after finding that the matter could be equally well addressed through the

8

5 U.S.C. §§ 8101-8193.

9

Id. at § 8124(b)(1).

10

20 C.F.R. § 10.615.

11

Henry Moreno, 29 ECAB 475 (1998).

12

J.C., 58 ECAB ___ (Docket No. 06-1018, issued January 10, 2007); P.P., 58 ECAB ___ (Docket No. 07-1045,
issued September 5, 2007).
13

20 C.F.R. § 10.615.

14

L.D., 58 ECAB ___ (Docket No. 06-1627, issued February 8, 2007).

4

reconsideration process.15 Consequently the Office, in its June 19, 2008 decision, properly
denied appellant’s request for a review of the written record.
LEGAL PRECEDENT -- ISSUE 2
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a) of the Act.16 As one such limitation, 20 C.F.R.
§ 10.607 provides that an application for reconsideration must be sent within one year of the date
of the Office decision for which review is sought. The Office will consider an untimely
application only if the application demonstrates clear evidence on the part of the Office in its
most recent merit decision. The application must establish, on its face, that such decision was
erroneous.17
The term ‘clear evidence of error’ is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized medical report which, if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the Director’s own motion.18 To establish clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
the Office. The evidence must be positive, precise and explicit and must manifest on its face that
the Office committed an error.19
ANALYSIS -- ISSUE 2
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.20 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.21 Appellant
initially requested reconsideration on June 21, 2008; however, he referenced a decision that was
not of record. In response to the Office’s request for clarification, on July 10, 2008 he specified
that he was requesting reconsideration of the January 23, 2003 hearing representative’s

15

Id.

16

5 U.S.C. §§ 8101-8193.

17

20 C.F.R. § 10.607.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).

19

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
20

20 C.F.R. § 10.607(a).

21

Robert F. Stone, supra note 19.

5

decision.22 As appellant’s July 10, 2008 request for reconsideration was submitted more than
one year after January 23, 2003, the date of the last merit decision of record, it was untimely.
Consequently, he must demonstrate clear evidence of error by the Office in denying his schedule
award claim.23
In a statement dated June 25, 2008, appellant raised arguments regarding an April 18,
2002 traumatic injury claim. He asserted that his supervisor failed to file his April 18, 2002
traumatic injury claim. The relevant issue, however, is whether appellant has established that he
sustained a permanent impairment due to his August 6, 2001 work injury. In order to establish
clear evidence of error, a claimant must submit evidence relevant to the issue which was decided
by the Office.24
In a report dated January 10, 2005, Dr. Griffith diagnosed chronic post-traumatic back
pain and right radiculopathy at L4-5 and S1. He provided work restrictions and listed range of
motion findings for the back. Dr. Griffith, however, did not address whether appellant sustained
a permanent impairment of a lower extremity due to his August 6, 2001 work injury.
Consequently, his report is insufficient to establish clear evidence of error.
With his request for reconsideration, appellant submitted medical evidence from 2001
and 2002. He also submitted MRI scan studies of the lumbar spine dated 2002 and 2004. None
of the medical evidence submitted, however, addressed whether he had any impairment due to
his accepted work injury. As discussed, to establish clear evidence of error a claimant must
submit evidence relevant to the issue which was decided by the Office.25
As the evidence submitted by appellant is insufficient to raise a substantial question as to
the correctness of the Office’s last merit decision, he has not established clear evidence of
error.26
On appeal appellant contends that his supervisor knowingly made his case appear
fraudulent by challenging the circumstances of his claim in an August 7, 2001 e-mail message.
He also asserted that the physician who treated him should have placed him on light duty. The
Office, however, accepted that he sustained a lumbar strain due to an injury on August 6, 2001
and he is not claiming compensation for total or partial disability. The relevant issue is whether

22

Appellant also related that he wanted the Office to reopen file number xxxxxx248 for medical treatment. The
Office has not issued a final decision on this issue and thus it is not before the Board at this time. See 20 C.F.R.
§ 501.2(c).
23

20 C.F.R. § 10.607(b); see A.L., 60 ECAB ___ (Docket No. 08-1730, issued March 16, 2009).

24

Howard Y. Miyashiro, 51 ECAB 253 (1999).

25

See D.D., 58 ECAB ___ (Docket No. 06-1148, issued November 30, 2006).

26

See D.E., 59 ECAB ___ (Docket No. 07-2334, issued April 11, 2008).

6

appellant has submitted evidence showing that he is entitled to a schedule award for a permanent
impairment due to the injury.27
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b) of the Act, concerning a claimant’s entitlement to a hearing, states:
“Before review under section 8128(a) of this title, a claimant for compensation 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.”28
The Office procedure manual states that appeals include hearings, reconsiderations and
review by the Board.29 The procedure manual provides “Appeals may be requested in any order,
except that a hearing may not be held after the case has been reconsidered.”30
ANALYSIS -- ISSUE 3
The Office denied appellant’s schedule award claim in decisions dated August 19, 2002
and January 23, 2003. On June 19, 2008 the Office denied his request for a review of the written
record as he had previously received a review of the written record on the same issue. Appellant
requested reconsideration on July 10, 2008. By decision dated July 16, 2008, the Office denied
his request for reconsideration as it was untimely and did not establish clear evidence of error.
On July 26, 2008 appellant requested a review of the written record in reference to the
July 16, 2008 decision. By decision dated August 20, 2008, the Office denied his request for a
review of the written record as he had previously requested and received reconsideration under
section 8128. As appellant had previously received review of his claim under section 8128(a),
he was not entitled to a hearing under section 8124.31
On August 22, 2008 appellant again requested a review of the written record. In a
decision dated October 15, 2008, the Office denied his request as he had previously received
reconsideration under section 8128. Again, the statute and the Office’s procedure manual
provide that a claimant is not entitled to a hearing after review under section 8128.32 As
appellant had previously received reconsideration of his claim under section 8128, he was not
entitled to a review of the written record.

27

Appellant submitted new medical evidence with his appeal. The Board has no jurisdiction to review new
evidence on appeal; see 20 C.F.R. § 501.2(c); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).
28

5 U.S.C. § 8124(b)(1).

29

Federal (FECA) Procedure Manual, Part 2 -- Claims, Review Process, Chapters 2.100.1 (June 1997).

30

Id. at 2.1600.4 (December 1991).

31

5 U.S.C. § 8124; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Review Process, Chapter
2.100.4 (December 1991).
32

Id.

7

CONCLUSION
The Board finds that the Office, in its June 19, 2008 decision, properly denied appellant’s
request for review of the written record under 5 U.S.C. § 8124. The Board further finds that the
Office properly denied his request for reconsideration as it was untimely and did not establish
clear evidence of error and that the Office, in its August 20 and October 15, 2008 decisions,
properly denied his requests for review of the written record under section 8124.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 15, August 20 and June 19, 2008 are affirmed.
Issued: December 30, 2009
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

8


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

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Docket No. 13-201
Issued: April 25, 2013

Case Submitted on the Record

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

On November 5, 2012 appellant filed an application for review of a July 27, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an
additional schedule award.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that,
when adjudicating a claim, OWCP is obligated to consider all evidence properly received before
a final decision is issued. In the present case, appellant filed a claim for an additional schedule
award and submitted, inter alia, a May 21, 2012 impairment rating report from Dr. Michael T.
Foreman before the July 27, 2012 decision was issued. Nonetheless, OWCP denied her claim
without addressing the probative value of Dr. Foreman’s report.
Accordingly, the case will be remanded to enable OWCP to properly consider all of the
evidence in the case record at the time of the July 27, 2012 decision. Following this and any
further development deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s claim.

1

41 ECAB 548 (1990).

IT IS HEREBY ORDERED THAT the July 27, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case for further action consistent with this
order of the Board.
Issued: April 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Framingham, MA, Employer
__________________________________________

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Appearances:
Sheilah F. McCarthy, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-342
Issued: April 1, 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 13, 2009 appellant, through counsel, filed a timely appeal from a May 20,
2009 decision of the Office of Workers’ Compensation Programs denying his emotional
condition claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an emotional condition in the
performance of duty on September 5, 2006.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decision was issued May 20, 2009, the 180-day computation begins May 21, 2009. One hundred and eighty days
from May 21, 2009 was Tuesday, November 17, 2009. Since using November 18, 2009, the date the appeal was
received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered
the date of filing. The date of U.S. Postal Service postmark is November 13, 2009 which renders the appeal timely
filed. See 20 C.F.R. § 501.3(f)(1).

FACTUAL HISTORY
On September 26, 2006 appellant, then a 49-year-old customer service supervisor, filed a
traumatic injury claim alleging that on September 5, 2006 he sustained an emotional condition
when William Harris, his supervisor, falsely accused him of sexual harassment and threatened
him. He stopped work on September 5, 2006.
The employing establishment controverted the claim, noting that it was a female
employee in appellant’s charge that made an accusation of harassment. It also noted that
appellant had a prior history of major depressive disorder. Mr. Harris denied accusing appellant
of being guilty of sexual harassment or of threatening him. The employer submitted a
September 5, 2006 e-mail from Caroline S. Colarusso, the postmaster of a neighboring station, to
Mr. Harris in which she addressed an August 31, 2006 meeting held with appellant, a female
letter carrier and Paul M. Chapski, of the local union, regarding alleged harassment by appellant.
The letter carrier outlined three issues: that appellant did not respond to her requests for
direction; that appellant had told her he understood her postal route due to the fact that he was
familiar with two predecessors on the route; and that she could not get a straight answer from
appellant. She noted that her two predecessors were male which resulted in her feeling
inadequate and she began to cry. At the close of the meeting, Ms. Colarusso recommended that
the letter carrier again speak to appellant to resolve the issues.
On September 1, 2006 the parties met again. Prior to the meeting, Ms. Colarusso
suggested to appellant that he apologize to the letter carrier for not providing her with a timely
response as to her route inquiries. She suggested the apology as the letter carrier had cried and
become upset the prior day. During the meeting, the letter carrier reiterated her three concerns in
working with appellant. Ms. Colarusso noted that as the letter carrier was on the overtime list,
appellant should timely handle her route requests. Appellant responded to the second allegation
by saying he had not compared her to the two male predecessors on the route. The letter carrier
interrupted him saying that appellant had made such a remark. Appellant asked her how she
defined “sexual harassment” and she responded that he had made her feel inadequate because she
could not perform the job as had her predecessors who were male. He responded that he did not
believe that to constitute sexual harassment. At the conclusion of the meeting, Ms. Colarusso
asked him why he did not apologize to the letter carrier and he responded he had done nothing
wrong. She stated that she did not observe appellant accepting responsibility for any of the
concerns raised and Ms. Colarusso advised the letter carrier that if she was not satisfied, she
could pursue her complaints.
In a September 19, 2006 attending physician’s report (Form CA-20), Dr. Allan B.
Rosansky, a psychiatrist, diagnosed post-traumatic stress disorder and checked “yes” to the
question of whether the condition was employment related. Under history of the injury, he
reported that appellant had been threatened by his boss on September 5, 2006.
In a statement of record, appellant alleged that on the morning of September 5, 2006 he
was accused of sexual harassment and threatened by Mr. Harris, who purportedly told him that
he could take a demotion, transfer from the office or be thrown out. He contended that
Mr. Harris went outside established practices for investigation of the matter and the policy
against violence in the workplace and had a reputation for bullying and intimidation. Appellant

2

noted a history of having been previously hospitalized in 2003. He stated that his memory was
dependent on his level of stress and that he could not recall certain events, which he attributed to
the conduct of his supervisor. Appellant contended that the charge of sexual harassment had
been manufactured and denied any stress in his private life. He related that at a prior meeting of
September 1, 2006 no accusation or mention of sexual harassment was made.
In an October 11, 2006 letter, the Office informed appellant that the evidence of record
was insufficient to support his claim. It requested that he submit additional factual and medical
evidence.
On November 2, 2006 appellant stated that his injury involved his ability to recall events
and his perceptions of what happened during periods of memory loss changed as he learned new
things. He related that in making a timeline of what happened on September 5, 2006 there were
gaps for which he had no memory. Appellant reiterated that Mr. Harris did not follow proper
procedures and stated that he wanted and expected an investigation to address his concerns. He
stated that Mr. Harris threatened him a first time without any witness and a second time when
accompanied by Roy W. Madden, supervisor of customer service.
In an undated statement, Mr. Madden noted that on September 5, 2006 appellant asked to
be accompanied to the postmaster’s office where Mr. Harris was located. Mr. Harris
acknowledged appellant, and Mr. Madden stated that he was there at appellant’s request. When
appellant began to speak, Mr. Harris put up his right hand and stated: “You’ve already had your
day in court. Now you have three choices, leave, go back to the craft or I’ll throw you out.”
Mr. Madden and appellant left the office and returned to their desks. Several minutes later,
appellant advised Mr. Madden that he could not work under these conditions and left.
On October 19, 2006 Mr. Chapski, President and Chief Steward of the local branch,
described the August 31, 2006 meeting between the female letter carrier, appellant and
Ms. Colarusso. It was held to resolve an issue between the letter carrier and appellant.
Mr. Chapski stated that the meeting resolved the matter and no harassment grievances were filed
over the issue and no equal employment opportunity (EEO) complaint was filed. On October 30,
2006 Robert F. Burns, President of a difference local branch, stated that he received an e-mail
from appellant on September 5, 2006 alleging a threat and intimidation by Mr. Harris. Appellant
stated that Mr. Harris had “convicted” him of sexual harassment and had given him three
choices.
In November 7 and 14, 2006 reports, Dr. Rosansky repeated the diagnosis of posttraumatic stress disorder. He advised that appellant was totally disabled from working due to
marked anxiety, thought blocking and confusion. Dr. Rosansky attributed appellant’s symptoms
to threatening behavior by his supervisor on September 5, 2006
By decision dated November 27, 2006, the Office found that the September 5, 2006
meeting between appellant, Mr. Harris and Mr. Madden occurred but the evidence did not
support that appellant was verbally or physically threatened by Mr. Harris. It determined that he
failed to establish any compensable factors of employment.

3

In a November 19, 2007 letter, counsel requested reconsideration. He resubmitted
Mr. Madden’s undated statement and August 27 and 30, 2007 reports from appellant’s attending
psychologists. Dr. Rosansky stated that he had treated appellant for four years with a history of
amnesic disorder due to work stress. The condition was under control with medication and
therapy until the September 5, 2006 incident with his supervisor. Dr. Rosansky attributed
appellant’s psychological decompensation to the threatening behavior of his supervisor.
In a February 21, 2008 decision, the Office denied modification of the November 27,
2006 decision.
On February 19, 2009 appellant requested reconsideration and submitted factual and
medical evidence previously considered. He contended that Mr. Harris failed to follow proper
employing establishment procedures regarding sexual harassment allegations during the
September 5, 2006 meeting. Appellant contended that at the meeting Mr. Harris informed him
that he was guilty of sexual harassment and given three options. As a result of the threats by
Mr. Harris, his post-traumatic stress disorder was aggravated.
By decision dated May 20, 2009, the Office denied modification of the February 21, 2008
decision denying his claim.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.2 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.3 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 the Federal Employees’ Compensation
Act.4 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.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.6 The Board has held,
however, that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
2

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

3

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

4

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

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

6

See K.W., 59 ECAB 271 (2007); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387
(1990), reaff’d on recon., 42 ECAB 556 (1991).
7

See M.D., 59 ECAB 211 (2007); William H. Fortner, 49 ECAB 324 (1998).

4

In determining whether the employing establishment personnel have erred or acted abusively, the
Board will examine the factual evidence of record to determine whether they acted reasonably.8
The Board has held that when working conditions are alleged as factors in causing an
emotional 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 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, the Office should then
determine whether the evidence of record substantiates that factor.10 When the matter asserted is
a compensable factor of employment and the evidence of record establishes the truth of the
matter asserted, the Office must base its decision on an analysis of the medical evidence.11
ANALYSIS
The Board notes that appellant has not alleged any compensable factor relating to the
performance of his regular or specially assigned work duties under Cutler. Rather, appellant
attributed his emotional condition to the September 5, 2006 meeting with Mr. Harris his
supervisor. Appellant’s counsel contends that Mr. Harris’ account was untruthful and that the
Office erred in concluding there was insufficient evidence of error or abuse. Appellant
contended that he was bullied and threatened by Mr. Harris, who convicted him of sexual
harassment and failed to follow appropriate procedures. The Office found that the September 5,
2006 meeting occurred, but that the evidence did not support appellant’s contention that he was
threatened by Mr. Harris or that he had erred in his treatment of the claimant.
The evidence of record establishes that, prior to the September 5, 2006 meeting with
appellant’s immediate supervisors, the employing establishment conducted an investigation into
complaints by a female subordinate letter carrier against appellant. Ms. Colarusso described a
situation in which an accusation of “harassment” had been brought concerning three primary
points of contention: that appellant was not responsive to her requests concerning her route; that
he had compared her work on the route with that of two predecessor employees who were male,
and her complaint that he did not provide her with straight answers to questions. She described
meetings of August 31 and September 1, 2006 and her recommendations to both appellant and
the letter carrier. It is apparent that at the second meeting, appellant asked the letter carrier how
she defined “sexual harassment” and his belief that comparing her work with that of her male
predecessors was not sexual harassment. Mr. Chapski, the union representative, provided a brief
description of the August 31, 2006 meeting, noting that no harassment grievances were ever filed
to the best of his knowledge.

8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

D.L., 58 ECAB 217 (2006).

10

K.W., supra note 6; David C. Lindsey, Jr., 56 ECAB 263 (2005).

11

Robert Breeden, 57 ECAB 622 (2006).

5

Appellant contends that Mr. Harris threatened him twice on September 5, 2006. The
evidence of record, however, documents only one meeting between him and his immediate
supervisor that day. Mr. Madden noted that shortly after the carriers had started work, appellant
approached him and requested that he accompany him to the postmaster’s office to be a witness
to what was going to take place. They went to the office where Mr. Harris acknowledged them.
Mr. Madden informed Mr. Harris that appellant had asked him to be a witness. After appellant
started to speak, Mr. Harris raised his hand and told him he had “his day in court” and could
leave and go back to work, face a possible demotion or “I’ll throw you out.” The meeting ended.
Appellant alleged that at the meeting Mr. Harris “convicted” him of sexual harassment
and threatened him. The Board finds that the evidence from Mr. Madden does not support his
contentions. It is well established that verbal altercations or abuse may be compensable when
sufficiently detailed and supported by the evidence.12 The statement of Mr. Madden does not
establish that appellant was threatened by Mr. Harris or that the matter of sexual harassment was
discussed. While appellant may have been sensitive to the allegation of sexual harassment based
on his September 1, 2006 discussion with a subordinate employee; Mr. Madden did not support
that sexual harassment was brought into the following discussion between appellant and his
supervisor. The reference by Mr. Harris that appellant had “had his day in court” it too obscure a
reference to support appellant’s contention of being “convicted” by his supervisor or to establish
violation of specific procedures related to investigation of such complaints. It is apparent that
the matter being investigated was a complaint against appellant by a subordinate female
employee. There is no evidence to establish that Mr. Harris was charged with investigating this
matter; rather, that appears to be basis for Ms. Colarusso’s involvement in the matter.
Appellant stated that Mr. Harris privately told him that he was guilty of sexual
harassment at around 7:30 a.m. that day. The record does not support this allegation and it was
denied by Mr. Harris. Rather, the statement of Mr. Madden supports that appellant met with
Mr. Harris and then left work, approximately by 8:40 a.m. Appellant stated that he had a 30- to
40-minute “gap” in memory concerning the events of the day. The Board notes that the e-mail of
Postmaster Colarusso to Mr. Harris advising him of the two meetings with appellant’s
subordinate employee was not sent until 8:36 a.m. the morning of September 5, 2006. Therefore,
at the time appellant met with Mr. Harris, it does not appear that he had knowledge of the
“sexual harassment” topic raised by appellant with the subordinate employee on
September 1, 2006. Even if he did, the statement of Mr. Madden does not support that
Mr. Harris accused appellant of any form of sexual misconduct or harassment towards an
employee. Based on the evidence of record, the Board finds that appellant’s claim is premised
on his perceptions of his meeting with his supervisor and self-generated concerns. The evidence
does not establish that Mr. Harris was abusive toward appellant. Advising appellant that he
could return to work, face a possible demotion, leave or be compelled to leave does not rise to
the level of verbal abuse or error on the part of the supervisor.13 A claimant’s own feelings or
perceptions that a form of criticism by or disagreement with a supervisor is unjustified,
12

See David C. Lindsey, Jr., supra note 10. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under the Act. See Marguerite J. Toland, 52 ECAB 294 (2001).
13

See Joe M. Hagewood, 56 ECAB 479 (2005); Cyndia R. Harrill, 55 ECAB 522 (2004); Judy L. Kahn, 53
ECAB 321 (2002).

6

inconvenient or embarrassing is self-generated and does not give rise to a compensable
disability.14 On appeal, counsel contends that the Office erred in failing to find error and abuse
on the part of Mr. Harris on September 5, 2006. The Board finds that the evidence of record
does not support appellant’s assertions.
In Thomas D. McEuen,15 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters are not covered under the Act as they pertain to
procedures and requirements of the employer and do not bear a direct relation to the work
required of the employee. Coverage under the Act may attach if the factual circumstances
establish error or abuse by management in dealing with the employee. Absent evidence of such
error or abuse, the resulting emotional condition is considered self-generated and not
employment related. In determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.16
Appellant failed to submit sufficient evidence to support error or abuse by Mr. Harris during the
September 5, 2006 meeting.
CONCLUSION
The Board finds that appellant did not establish that he sustained an emotional condition
causally related to his federal employment on September 5, 2006.

14

Michael A. Deas, 53 ECAB 208 (2001).

15

Supra note 6.

16

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

7

ORDER
IT IS HEREBY ORDERED THAT the May 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 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