United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPATMENT OF THE AIR FORCE, KESSLER
AIR FORCE BASE, MS, Employer
__________________________________________

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

Docket No. 13-1668
Issued: January 6, 2014

Case Submitted on the Record

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

JURISDICTION
On July 5, 2013 appellant filed a timely appeal from a January 17, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established a lumbar injury causally related to a
November 6, 2010 employment injury.
FACTUAL HISTORY
On March 7, 2011 appellant, then a 43-year-old human resources specialist, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a right leg and foot injury in the
performance of duty on November 6, 2010. He stated that “after running for about half of [a]
1

5 U.S.C. § 8101 et seq.

mile during physical training” he felt pain in his right leg and numbness in his right foot. A
March 16, 2011 memorandum from the employing establishment advised that appellant was a
civilian employee serving in a position that required an active reserve assignment and
participation in military physical training. The employing establishment confirmed that the
training on November 6, 2010 was conducted on the employing establishment premises.
Appellant received treatment for his right leg from Dr. Jeffrey Noblin, a Board-certified
orthopedic surgeon. In a report dated February 15, 2011, Dr. Noblin diagnosed compartment
syndrome. In a report dated March 2, 2011, he noted that appellant underwent right leg surgery,
described as fascial release from the lateral and anterior compartment with neurolysis of
superficial peroneal nerve.
On November 16, 2011 OWCP accepted the claim for right leg compartment syndrome.
In a report dated December 27, 2011, Dr. Joe Chen, an anesthesiologist, noted that appellant
received a lumbar epidural injection. By report dated January 17, 2012, Dr. Noblin reported that
a magnetic resonance imaging scan revealed right-sided radiculopathy at L5-S1, and appellant
was referred to a spine specialist.
In a report dated February 3, 2012, Dr. Charles Winters, a Board-certified orthopedic
surgeon, listed a history that appellant had occasional back pain. He stated that following right
leg treatment appellant tried to return to running but could not run. Dr. Winters diagnosed
compartment syndrome, “radiculopathy lumbosacral radiculitis” and right foot pain. By report
dated February 23, 2012, he stated that x-rays showed a narrowing of the L5-S1 disc. Appellant
requested that the lumbar condition also be accepted.
By report dated March 12, 2012, Dr. Winters stated that he had been asked to determine
if there was a relationship between the running injury and appellant’s low back condition. He
opined that “when you have neuroforaminal narrowing, repetitive activity such as running,
bending, jumping and lifting can aggravate the nerve because the neuroforamen is already tight.
The additional movement in the area of a tight nerve can bruise the nerve or contuse it, even
compress the nerve in such a way that it causes radicular pain.” Dr. Winters noted that appellant
had right leg pain, some of which was related to his previous compartment syndrome problem
but some of it may also be related to an aggravation of the neuroforaminal compression by
running.
In a report dated July 23, 2012, Dr. Winters stated that appellant’s “pain is work related
due to running with the compartment syndrome in his leg. I feel that his repetitive activity at
work such as running, bending, jumping and lifting caused his initial leg pain. [Appellant] began
having pain after running at work. He did not have an actual injury date but the pain was caused
by his repetitive work with running, bending and jumping.” Dr. Winters stated that diagnosis
radiculopathy lumbosacral radiculitis should be considered work related.
By decision dated September 10, 2012, OWCP denied appellant’s lumbar condition as a
consequential injury.
Appellant requested a review of the written record by an OWCP hearing representative.
He submitted a September 25, 2012 brief report from Dr. Winters, who stated that appellant’s

2

diagnoses were related to “his repetitive activities.” Dr. Winters included lumbar disc disease
along with his previous diagnoses.
In a decision dated January 17, 2013, OWCP’s hearing representative affirmed the
September 10, 2012 decision. He found that the medical evidence was not sufficient to establish
a lumbar injury causally related to the November 6, 2010 work activity. The hearing
representative noted that appellant could file an occupational disease or illness claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including that any specific condition for which compensation is
claimed is causally related to the employment injury.3 The medical evidence necessary to
establish a diagnosed condition is rationalized medical opinion on causal relation.
It is well established that rationalized medical opinion evidence is medical evidence that
is based on a complete factual and medical background, of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and federal employment. The weight of medical evidence is determined by its
reliability, its probative value, its convincing quality, the care of the analysis manifested and the
medical rationale expressed in support of the physician’s opinion.4
ANALYSIS
Appellant sustained a traumatic injury while running in a training program on
November 6, 2010. OWCP accepted right leg compartment syndrome. The issue is whether
appellant also sustained a lumbar injury. It is his burden of proof to establish that a lumbar
condition was employment related and the evidence must include a rationalized medical opinion.
The Board finds that the medical evidence of record does not meet appellant’s burden of
proof. While Dr. Winters stated that the diagnoses of radiculopathy and lumber radiculitis were
work related, he did not provide a rationalized medical opinion based on a complete and accurate
factual and medical background. The traumatic injury claim was based on running on
November 6, 2010, but he never provided a history that included a specific history of the
accepted employment incident. None of Dr. Winters’ reports provide an adequate background
for an opinion as to a lumbar condition causally related to the November 6, 2010 employment
activity.
The primary lumbar diagnosis was a lumbosacral radiculitis, with the additional diagnosis
of lumbar disc disease noted in a September 25, 2012 report. With respect to causal relationship,
Dr. Winters referred generally to repetitive activity such as running, bending, jumping and
lifting. He did not explain the nature or extent of such activities or provide other detail. In a
2

Id. at §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3

July 23, 2012 report, Dr. Winters stated that such repetitive activity was work activity, again
without further explanation. The general reference to repetitive activities at work is of
diminished probative value with respect to the issue of causal relation and the specific running
activity on November 6, 2010. If appellant is claiming that repetitive work activity over more
than one workday caused his lumbar condition, then an occupational disease or illness claim may
be filed.5 As to his traumatic injury claim, the medical evidence does not provide an accurate
factual background discussing the nature and extent of how running on November 6, 2010
caused or contributed to his low back condition.
In the July 23, 2012 report, Dr. Winters states that appellant had pain “due to running
with the compartment syndrome in his leg.” He does not make it clear that appellant’s back
condition was consequential injury from the accepted compartment syndrome. A consequential
injury is an injury that is the direct and natural result of a compensable primary injury, without
an independent intervening cause.6 To establish a consequential injury, Dr. Winters must
provide a rationalized medical opinion on the issue.7 He did not provide an adequate medical
opinion on the issue of causal relationship.
On appeal, appellant stated that after a recovery period of four months following his
March 2, 2011 surgery, Dr. Noblin recommended that he resume an exercise routine. He stated
that after resuming exercise, he felt his calf cramping, and pain in his low back. Appellant
contends that these injuries are related to November 6, 2010. The issue presented is a medical
issue that must be resolved by probative medical evidence. Dr. Winters must provide an
accurate factual background that demonstrates an understanding of the November 6, 2010
employment activity and a rationalized opinion on causal relationship between a diagnosed back
or calf condition and the employment activity or the accepted employment injury. Appellant
also submitted a medical report, but the Board can review only evidence that was before OWCP
at the time of the final decision on appeal.8 He 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 established a lumbar injury causally related to a
November 6, 2010 employment injury.

5

20 C.F.R. § 10.5(q) defines an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift.
6

Albert F. Ranieri, 55 ECAB 598 (2004). See also A. Larson, The Law of Workers’ Compensation § 10.01
(November 2000).
7

J.A., Docket No. 12-603 (issued October 10, 2012).

8

20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 17, 2013 is affirmed.
Issued: January 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Marion, IL, Employer
__________________________________________

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

Docket No. 10-499
Issued: November 29, 2010

Case Submitted on the Record

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

JURISDICTION
On December 16, 2009 appellant filed a timely appeal from a November 13, 2009
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merit issues of this case.
ISSUES
The issues are: (1) whether the Office properly found an overpayment in compensation
in the amount of $13,319.30 for the period October 27, 2008 through March 14, 2009 because
she received wage-loss compensation after her return to work; and (2) whether the Office
properly found that appellant was at fault in the creation of the overpayment and it was therefore
not subject to waiver.
On appeal, appellant asserts that the amount of the overpayment and fault determination
are incorrect.

FACTUAL HISTORY
On May 26, 2007 appellant, then a 48-year-old nurse, injured her back when she was hit
by an agitated patient, causing her to fall. She stopped work that day. The Office accepted that
appellant sustained an employment-related lumbar strain and aggravation of displacement of a
lumbar intervertebral disc from L4 to S1. The acceptance letter advised her that she should
immediately notify the Office upon her return to work. Appellant was paid wage-loss
compensation on the supplemental rolls by direct deposit beginning July 14, 2007. On
September 13, 2007 she underwent lumbar laminectomy, discectomy and fusion. Appellant
returned to work on October 27, 2008. In a November 7, 2008 letter, the Office informed her
that she would thereafter receive compensation on the periodic rolls, effective October 26, 2008,
at a net amount of $3,444.06.1 Appellant was told to inform the Office immediately when she
returned to work, in order to avoid an overpayment. She continued to receive wage-loss
compensation through March 14, 2009.
By letter dated April 21, 2009, the Office issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $13,319.30 from
October 27, 2008 to March 14, 2009 because she received wage-loss compensation during a
period in which she had salary from employment. It explained the calculation of the
overpayment and found her at fault because she knew or should have known that she was not
entitled to wage-loss compensation after her return to work. Appellant was provided an
overpayment action request form and an overpayment questionnaire. An overpayment
worksheet determined that from October 27, 2008 through March 14, 2009 she received
compensation of $17,132.18 but was only entitled to $3,812.88 for loss of premium pay, the
difference representing an overpayment in compensation of $13,319.30.
Appellant, through counsel, requested a prerecoupment hearing that was held on
August 11, 2009.2 She testified that, when she returned to work, she was entitled to receive
some compensation because she lost shift differential, holiday pay and weekend pay and at some
point she notified someone at work that she was continuing to receive compensation benefits.
Appellant stated that she did not understand banking procedures or the materials sent to her by
the Office and that she had a depressive disorder for which she took medication on a daily basis.
She acknowledged that she had three years of college and testified that she did not receive an
overpayment recovery questionnaire and had stopped work in June 2007. Appellant briefly
discussed her expenses and stated that her adult son, who was a heavy equipment operator, lived
with her but contributed nothing to her household expenses. She stated that she paid bills with
the wage-loss payments received after her return to work. The hearing representative noted that
1

Appellant received gross compensation of $3,636.16 with deductions of $24.30 for health benefits, $17.40 for
basic life insurance, and $50.40 for optional life insurance, for a net compensation of $3,444.06. She received this
amount for the periods October 26 through November 22, 2008, November 23 through December 20, 2008, and
December 21, 2008 through January 17, 2009. The net compensation rate was decreased to $3,400.00 on
January 18, 2009, due to increases in health benefit and optional life insurance deductions.
2

On July 20, 2009 appellant filed a claim, stating that she sustained a recurrence of disability on June 30, 2009
because sitting for long periods and driving to and from work caused pain and because she felt that she was working
beyond her restrictions. By letter dated July 30, 2009, the Office informed her that the claim was being adjudicated
as a new claim and she would be assigned a new case number.

2

appellant would be provided with an overpayment questionnaire and to include her son’s income
on the form. On August 13, 2009 the Office forwarded appellant an additional overpayment
questionnaire and the record was held open for an additional 30 days for her to complete the
form. Appellant did not respond.
By decision dated November 13, 2009, the Office hearing representative finalized the
overpayment of $13,319.30 and that she was at fault in creating the overpayment because she
received wage-loss compensation she knew or should have known to be incorrect.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of her duty.4 Office
procedures provide that an overpayment in compensation is created when a claimant returns to
work and continues to receive compensation.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $13,219.30. The record supports that she returned to work on October 27, 2008 and earned
her regular salary, less shift differential, holiday pay and weekend pay. Appellant received
wage-loss compensation through March 14, 2009. As noted, the Act and implementing federal
regulations provide that a claimant may not receive wage-loss compensation concurrently with a
federal salary.6 An overpayment worksheet establishes that appellant received compensation of
$17,132.18 but was entitled to only $3,812.88 for loss of premium pay. This created an
overpayment in compensation of $13,319.30 for the period in question. The Board will affirm
the fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”7

3

5 U.S.C. §§ 8101-8193.

4

Id. at § 8102(a).

5

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).
6

5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

7

5 U.S.C. § 8129; see Joan Ross, 57 ECAB 694 (2006).

3

Section 10.433(a) of the Office regulations provide that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”8
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
In finding appellant at fault in the creation of the $13,319.30 overpayment, the Office
relied on the third standard, finding that she knew or should have known the payments she
received by direct deposit after her return to work on October 27, 2008 through March 14, 2009
were incorrect.
Each recipient of compensation benefits is responsible for taking all reasonable measures
to ensure that payments he or she receives are proper10 and the recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits.11 Even though the Office may have been negligent in making incorrect
payments, this does not excuse a claimant from accepting payments he or she knew or should
have known to be incorrect.12 The Board has found the claimant to be at fault in cases where he
or she is receiving compensation checks through direct deposit which involve a series of
payments over several months with clear knowledge that the payments are incorrect.13 It is not
appropriate, however, to make a finding that a claimant has accepted an overpayment via direct
deposit until such time as a reasonable person would have been aware that this overpayment had
8

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

9

B.H., 60 ECAB ___ (Docket No. 09-292, issued September 1, 2009).

10

Danny E. Haley, 56 ECAB 393 (2005).

11

Sinclair L. Taylor, supra note 8.

12

William E. McCarty, 54 ECAB 525 (2003).

13

See Karen K. Dixon, 56 ECAB 145 (2004).

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occurred. This awareness may be established either through documentation such as a bank
statement or notification from the Office or where a reasonable period of time has passed during
which a claimant could have reviewed independent confirmation of the incorrect payment.14
Appellant received wage-loss compensation by direct deposit after her return to work
from October 27, 2008 through March 14, 2009. Since Office regulations define fault by what
the claimant knew or should have known at the time of acceptance, one of the consequences of
electronic fund transfers is that in many cases the claimant will not be at fault for accepting the
first incorrect payment because the requisite knowledge is lacking at the time of deposit. The
Board so finds in this case as there is no evidence of record to show the period covered by this
direct deposit.15 A finding of no fault does not mean, however, that the claimant may keep the
money, only that the Office must consider eligibility for waiver for this period. The record in
this case shows that appellant received a compensation payment by direct deposit for the period
October 26 through November 22, 2008. The case will therefore be remanded for the Office to
determine whether she is entitled to waiver for that part of compensation paid after her return to
work on October 27, 2008.
Regarding the remainder of the overpayment period, by a November 7, 2008 letter, the
Office notified appellant that she was placed on the periodic compensation rolls and advised her
that she was to immediately inform the Office of her return to work to avoid an overpayment in
compensation. Further, if appellant worked during any period covered by a compensation
payment, she had to return the payment to the Office. The record indicates that when she
returned to work she was no longer entitled to premium pay. While appellant remained entitled
to wage-loss compensation for the loss of premium pay, this totaled $379.83 a week or $1,519.32
every four weeks. Yet she received compensation at the rate of at least $3,440.00 every four
weeks for five compensation periods after her return to work. The November 7, 2008 letter
clearly explained the basis for the compensation.
The Board finds that, under these circumstances, appellant should have known that she
was accepting incorrect payments. She did not have a reasonable expectation that she would
continue to receive compensation at the full compensation rate following her return to full duty
on October 27, 2008.16 Appellant had an obligation to return payments that she knew or should
have known to be incorrect.17 Under section 10.433(a) of the Office regulations, appellant is at
fault and is not entitled to waiver of the overpayment in compensation for the period
November 23, 2008 through March 14, 2009.18

14

See K.H., Docket No. 06-191 (issued October 30, 2006).

15

See Karen K. Dixon, supra note 13.

16

J.R., 60 ECAB ___ (Docket No. 08-1107, issued June 15, 2009).

17

Neill D. Dewald, 57 ECAB 451 (2006).

18

Id.

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With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where the Office seeks recovery from continuing compensation payments
under the Act.19
CONCLUSION
The Board finds that the Office properly determined that an overpayment in
compensation in the amount of $13,319.30 had been created. Appellant was not at fault for the
overpayment by direct deposit after her return to work covering the period October 27 through
November 22, 2008. She is at fault for the remaining period of the overpayment. The case is
remanded for a determination of whether she is entitled to waiver for this period.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, set aside in part and the case remanded
for further proceedings consistent with this decision.
Issued: November 29, 2010
Washington, DC

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

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

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

19

L.D., 59 ECAB 673 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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D.O., Appellant
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Cleveland, OH, Employer
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___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-1999
Issued: January 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated January 24 and May 3, 2007, which denied her
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the issues in this case.
ISSUE
The issue is whether appellant sustained an injury causally related to factors of her
federal employment.
FACTUAL HISTORY
On November 15, 2006 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim alleging that she sustained a right shoulder condition while performing a limitedduty position. She noted that she was on restrictions which entailed using her right hand due to a
left arm condition. Appellant first became aware of the condition on August 15, 2006. She did

not stop work. The employing establishment indicated that appellant was working in a limitedduty job and her duties consisted of performing the mail count.1
On November 24, 2006 the Office advised appellant that additional factual and medical
evidence was needed. The Office explained that a physician’s opinion was crucial to her claim
and allotted appellant 30 days within which to submit the requested information.
In a December 5, 2006 report, Dr. Robert Leb, a Board-certified orthopedic surgeon,
noted that appellant was evaluated for a “new problem.” Appellant stated that her shoulder
condition began when she went back to work following left carpal tunnel surgery. She was
placed on right hand duty only but her right shoulder became worse as she was working due to
overcompensating for her left shoulder. Dr. Leb indicated that this was a work-related injury.
He diagnosed right shoulder impingement syndrome. A December 5, 2006 right shoulder x-ray
read by Dr. Leb, showed no evidence of fracture or dislocation or advanced arthritic changes.
He advised that anterior cruciate joint arthritis was noted. In a December 28, 2006 report,
Dr. Leb stated that appellant was seen for her right shoulder, which was a “work-related injury.”
He recommended physical therapy, diagnosed right shoulder impingement syndrome and
indicated that appellant should remain on light duty.
By decision dated January 24, 2007, the Office denied appellant’s claim. It found that
appellant did not identify any specific work factors which she believed caused her condition.
The Office noted that appellant did not identify which right-handed duties caused her condition.
On January 29, 2007 the Office received an undated report from Dr. Leb who noted that
appellant was recovering from a left carpal tunnel surgery under File No. 092061330 related to
an April 5, 2005 injury. While appellant was restricted to right-hand duty under this claim, she
began to develop right shoulder pain. Dr. Leb diagnosed impingement syndrome and noted that
x-rays revealed a Type III acromion. He advised that appellant had no similar problems prior to
the date of onset and requested that the right shoulder impingement be allowed as a flow through
injury. Dr. Leb opined that, to a reasonable degree of medical certainty, the right-hand duty
restriction led to an overuse of her right shoulder impingement syndrome. The Office also
received copies of previously received reports.
On February 7, 2007 appellant requested reconsideration. She alleged that she had been
performing right hand duty for two years. Appellant’s duties included writing and carrying
materials under 10 pounds, counting mail every two hours during an eight-hour day, five days a
week, four hours sitting and four hours standing. On August 15, 2006 while counting and
getting her reports together she felt right arm numbness, her fingers tightened up, and she
experienced shooting pain from her waist, to her elbow and shoulder. Appellant alleged that this
condition had been continuous since August.

1

The record reflects that appellant has an accepted claim for a left shoulder sprain, left shoulder impingement and
left biceps strain. File No. 092044683 & 0904665588. Appellant also has a carpal tunnel claim for an April 5, 2005
date of injury under File No. 092061330. Additionally, she has an April 30, 2006 date-of-injury claim for a right
hand injury. File No. 092076911.

2

In a February 6, 2007 report, Dr. Leb noted that appellant felt that her right shoulder was
worsening. He diagnosed right shoulder impingement and possible right rotator cuff tear.
Dr. Leb noted that a magnetic resonance imaging scan was warranted and recommended
continued light duty.
By decision dated May 3, 2007, the Office denied modification of the January 24, 2007
decision. It noted that it was not clear how her shoulder was related to her limited-duty work as
it did not require a lot of shoulder movement. The Office indicated that, under File
No. 092061220, she was compensated for wage loss for the period May 18 to July 31, 2006. The
Office found that appellant was not employed during this time frame and that there were no work
factors that would have contributed to her condition. The Office found that it was unclear what
actual work factor was causing appellant’s complaints, as her work appeared to be performed at
desk level.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, 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 the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

3

relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5
ANALYSIS
The evidence establishes that appellant has a right shoulder condition and that she
performed activities such as writing and counting mail at work. The evidence establishes that
she performed such duties prior to filing her claim. However, appellant has submitted
insufficient medical evidence to establish that her right shoulder condition was caused or
aggravated by writing or counting mail or any other specific factors of her federal employment.
In support of her claim for a right shoulder condition, appellant submitted several reports
from Dr. Leb. They included his December 5 and 28, 2006 reports. Dr. Leb noted that appellant
believed that her shoulder condition began when she returned to work following left carpal
tunnel surgery as a result of overcompensating for her left shoulder. While he opined that
appellant’s condition was work related, he did not explain how he arrived at this conclusion.
Furthermore, Dr. Leb did not identify any specific employment factors that caused her condition.
This is particularly important in light of the fact that appellant was not working from May 18 to
July 31, 2006 and alleged that her condition arose on August 15, 2006. Additionally, Dr. Leb did
not discuss or exclude any other factors which could have caused or contributed to her condition.
While the medical opinion of a physician supporting causal relationship does not have to reduce
the cause or etiology of a disease or condition to an absolute certainty, neither can such opinion
be speculative or equivocal. The opinion of a physician supporting causal relationship must be
one of reasonable medical certainty that the condition for which compensation is claimed is
causally related to federal employment and such relationship must be supported with affirmative
evidence, explained by medical rationale and be based upon a complete and accurate medical
and factual background of the claimant.6
On January 29, 2007 the Office received an undated report from Dr. Leb, who noted that
appellant was restricted to right hand duty after recovering from a left carpal tunnel surgery
under File No. 092061330 and began to develop right shoulder pain. He diagnosed impingement
syndrome and a Type III acromion. Dr. Leb opined that appellant had no similar problems prior
to the date of onset and opined that he believed to within a “reasonable degree of medical
certainty that the right-hand duty restriction led to an overuse of her right shoulder impingement
syndrome. I therefore believe that it should be an allowed condition.” However, the Board has
held that an opinion that a condition is causally related to an employment injury, because the
employee was asymptomatic before the injury, is insufficient, without supporting rationale, to
establish causal relation.7 The Board also notes that Dr. Leb does not specifically address
particular work factors that he believes caused or aggravated appellant’s diagnosed condition.
Consequently, the Board finds that this evidence is insufficient to establish appellant’s claim.

5

Id.

6

Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow, 50 ECAB 370 (1999).

7

Kimper Lee, 45 ECAB 565 (1994).

4

Other reports from Dr. Leb did not specifically address causal relationship between
appellant’s employment and a diagnosed condition.
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a right shoulder condition, appellant has not met her burden of proof in
establishing that she sustained a medical condition in the performance of duty causally related to
factors of her employment.8
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 3 and January 24, 2007 are affirmed as modified.
Issued: January 24, 2008
Washington, DC

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

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

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

8

The Board notes that this decision does not preclude appellant from filing a claim for a consequential condition
under File No. 092061330.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, EVANSVILLE POST
OFFICE, Evansville, WI, Employer
__________________________________________

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

Docket No. 21-1077
Issued: March 16, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a June 25, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 21
percent permanent impairment of her left upper extremity for which she previously received
schedule award compensation.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the June 25, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 25, 2012 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she felt sharp pain in her upper left arm causally related
to factors of her federal employment including delivering mail and telephone books on May 22
and 23, 2013. OWCP initially accepted the claim for left rotator cuff strain. By decision dated
April 20, 2015, it expanded the acceptance of appellant’s claim to include other maladies of the
left shoulder region not elsewhere classified and calcifying tendinitis of left shoulder. OWCP paid
her wage-loss compensation on the supplemental rolls from February 18 through June 26, 2015.
Appellant retired effective April 30, 2015.
On July 7 and November 17, 2015 appellant filed claims for compensation (Form CA-7)
for a schedule award.
By decision dated June 13, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the left upper extremity based upon the findings of appellant’s
attending physician, Dr. Peter Szachnowski, a rheumatologist, and the district medical adviser
(DMA). The period of the award was for 9.36 weeks and ran from February 24 through
April 29, 2016.
On July 5, 2016 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review. By decision dated November 2, 2016, OWCP’s hearing
representative set aside the June 13, 2016 decision. The hearing representative found that OWCP’s
DMA failed to identify either the date of the report or the examination findings which he used to
calculate appellant’s permanent impairment, and date of maximum medical improvement (MMI).
By decision dated February 10, 2017, OWCP granted appellant a schedule award for an
additional two percent permanent impairment for a total of five percent left upper extremity
permanent impairment. The award was for 6.24 weeks and ran from April 30 to June 12, 2016.
On April 12, 2017 appellant requested reconsideration and submitted additional reports
from Dr. Szachnowski dated February 17 and April 3, 2017, which related appellant’s current
examination findings.
By decision dated July 11, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the claim.
On August 7, 2017 appellant filed a timely appeal to the Board. By decision dated
August 3, 2018, the Board affirmed OWCP’s February 10, 2017 merit decision, finding that the
evidence of record was insufficient to establish that appellant had greater than five percent
permanent impairment of her left upper extremity for which she previously received a schedule
3

Docket No. 17-1732 (issued August 3, 2018).

2

award. The Board, however, set aside OWCP’s July 11, 2017 nonmerit decision, finding that the
additional reports from Dr. Szachnowski, dated February 17 and April 13, 2017, constituted
pertinent new and relevant evidence warranting further merit review. The case was remanded for
further proceedings to be followed by a de novo decision.4
By decision dated May 8, 2019, OWCP granted appellant a schedule award for “an
additional” 16 percent left upper extremity permanent impairment for a total of 21 percent
permanent impairment of the left upper extremity. The award was for 49.92 weeks and ran for the
period April 15, 2019 through March 29, 2020.
On October 8, 2020 appellant filed a Form CA-7 claiming an increased schedule award.
In an October 13, 2020 development letter, OWCP acknowledged receipt of appellant’s
claim for an increased schedule award, noting that additional medical evidence was required to
determine permanent impairment utilizing the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It afforded her 30 days to
provide the requested information.
In a November 6, 2020 statement, appellant indicated that she visited Dr. Szachnowski for
injections in each shoulder to help alleviate the pain and to increase the mobility in her neck and
shoulder region. She also noted the symptomatology in her shoulders, which caused pain in the
shoulder/neck region.
OWCP received progress reports dated May 7, 2019 through December 18, 2020, wherein
from Dr. Szachnowski noted that appellant underwent subacromic injections for primary localized
osteoarthrosis, chronic tendinopathy, impingement phenomena and chronic rotator cuff
dysfunction in both shoulders. In the May 7, 2019 report, Dr. Szachnowski opined that appellant
was 30 percent “disabled.”
In a November 3, 2020 letter, Dr. Szachnowski indicated that appellant reached MMI in
January 2014 and was 30 percent “disabled” according to state workers’ compensation guidance.
He noted the rating was based on full internal and external rotation, full abduction, and 45 degrees
flexion because of pain and physical inability, i.e., motor abnormality.
On March 8, 2021 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as a DMA. In a
March 19, 2021 report, Dr. Hammel indicated that the most recent clinical examination notes from
Dr. Szachnowski indicated that appellant had continued left shoulder pain. He noted that the
magnetic resonance imaging (MRI) scan of appellant’s left shoulder was normal and that prior
treatments included medication and activity modification. Dr. Hammel indicated that appellant
reached MMI on November 3, 2020. He indicated that a permanent impairment based on range of
motion (ROM) methodology could not be calculated as Dr. Szachnowski had not documented
formal examination findings and had not provided triplicate measurements. Under the diagnosis4

Id.

5

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

3

based impairment (DBI) methodology of the A.M.A., Guides, he opined that appellant had two
percent permanent left upper extremity impairment. Dr. Hammel assigned a class of diagnosis
(CDX) of 1, grade C with a default value of three percent for impingement syndrome, residual loss
under Table 15-5.6 He assigned grade modifier adjustments as follows: grade modifier for
functional history (GMFH) of 1 for continued pain; grade modifier for clinical studies (GMCS) of
0 for normal MRI; and found that grade modifier for physical examination (GMPE) was not
applicable as no formal examination was provided. Dr. Hammel explained that application of the
net adjustment formula resulted in a finding of -1 or grade B, which was equivalent to 2 percent
left upper extremity permanent impairment. He indicated that Dr. Szachnowski did not provide
calculations to support his impairment, which was rated under state workers’ compensation
guidance, in his November 3, 2020 report.7
By decision dated April 21, 2021, OWCP denied appellant’s claim for an increased
schedule award, finding that she was not entitled to greater than the 21 percent permanent
impairment of the left upper extremity previously awarded. It accorded the weight of the medical
evidence to its DMA’s report of March 19, 2021.
On June 15, 2021 appellant requested reconsideration.
In a letter of even date, she argued that she deserved additional compensation based on her
chronic shoulder pain, which affected her everyday routine and did not allow her to work.
Dr. Szachnowski’s progress notes dated December 18, 2020 and June 1, 2021 were
received. In the June 1, 2021 progress note, he reported that appellant essentially had chronically
torn rotator cuffs and was undergoing therapy/injections. Dr. Szachnowski indicated that both
shoulders have painful impingement phenomena, which were symptomatic with decreased ROM
on abduction.
In a June 1, 2021 letter, Dr. Szachnowski indicated that appellant has an incurable
condition consisting of rotator cuff tendinopathy with tears in rotator cuffs and inability to abduct
the shoulders above the left and right shoulder level. He indicated that she has reached MMI and
had committed to periodic injection of her shoulders, which would be life-long with no expectation
of change. Dr. Szachnowski indicated that appellant was previously granted a schedule award for
21 percent permanent impairment. He advised that appellant’s pain was a significant impairment,
which affected her activities of daily living and which permanently affected her ability to lift,
carry, elevate, lie on, and use her shoulders above her head.
By decision dated June 25, 2021, OWCP denied modification.

6

Under Table 15-5 a Class 1, grade C impingement syndrome with residual loss has a default value of three percent.

7

OWCP received duplicative medical evidence following the DMA’s report.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,8 and its implementing federal regulation, 9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 11
A claimant may seek an increased schedule award if the evidence establishes that he or she
sustained an increased impairment causally related to an employment injury. 12 The medical
evidence must include a detailed description of the permanent impairment. 13
Regarding the application of ROM or DBI impairment methods in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
12

See T.W., Docket No. 20-1547 (issued October 4, 2021).

13

See K.F., Docket No. 18-1517 (issued October 9, 2019).

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should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM, where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 15
ANALYSIS
The Board finds that appellant has not established greater than 21 percent permanent
impairment of the left upper extremity for which she previously received schedule award
compensation.
Preliminarily, the Board notes that findings made in its prior decision are res judicata
absent any further review by OWCP under section 8128 of FECA. 16 The Board, therefore, will
not review the evidence addressed in its prior appeal.
Following the Board’s August 3, 2018 decision, by decision dated May 8, 2019, OWCP
granted appellant a schedule award for an additional 16 percent left upper extremity permanent
impairment for a total of 21 percent permanent impairment of the left upper extremity. Appellant
subsequently filed a claim for an increased schedule award and submitted additional reports from
Dr. Szachnowski.
Dr. Szachnowski opined, in his May 7, 2019 report and November 3, 2020 letter, that
appellant was 30 percent “disabled.” In his November 3, 2020 letter, Dr. Szachnowski indicated
that appellant reached MMI in January 2014. Under state workers’ compensation guidance, he
opined appellant had 30 percent “disability” based on examination findings of full internal and
external rotation, full abduction and 45 degrees flexion because of pain and physical inability, i.e.,
motor abnormality. In its October 13, 2020 development letter, OWCP had advised appellant that
the evidence should support an increased permanent impairment under the sixth edition of the
A.M.A., Guides. Dr. Szachnowski, however, failed to provide an opinion on permanent
impairment based on the sixth edition A.M.A., Guides.17 Thus, Dr. Szachnowski’s impairment
14

FECA Bulletin No. 17-06 (issued May 8, 2017).

15

Supra note 13.

16

M.S., Docket No. 20-0276 (issued September 15, 2021); G.W., Docket No. 19-1281 (issued December 4, 2019);
Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
17

M.A., Docket No. 19-1732 (issued September 9, 2020); L.C., Docket No. 19-0564 (issued September 16, 2019).

6

rating lacks probative value and is insufficient to establish appellant’s claim for an increased
schedule award.
OWCP routed Dr. Szachnowski’s reports and letter to its DMA, Dr. Hammel.18 In a
March 19, 2021 report, Dr. Hammel properly determined that appellant had two percent permanent
left upper extremity permanent impairment under the DBI rating methodology for impingement
syndrome, residual loss. Regarding appellant’s rating under the ROM methodology, Dr. Hammel
found that Dr. Szachnowski had not conducted a formal examination and had not provided
triplicate ROM measurements.
As there is no evidence establishing greater than 21 percent permanent impairment of the
left upper extremity, the Board finds that OWCP properly denied appellant’s claim for an increased
schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 16, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

Supra note 13 at Chapter 2.808.6(e) (March 2017); see also A.K., Docket No. 19-1927 (issued March 31, 2021);
K.S., Docket No. 20-1397 issued March 19, 2021); Tommy R. Martin, 56 ECAB 273 (2005).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1029
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On April 14, 2020 appellant, through counsel, f iled a timely appeal from a March 12, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On February 16, 2018 appellant, then a 49-year-old management assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 12, 2018 she experienced stress, anxiety,
nausea, and depression while in the performance of duty when her second-line supervisor informed
her that she was referenced in “graphic sexual harassment material.” She noted that she had also
received a death threat in August 2017. Appellant stopped work on February 14, 2018.
In a development letter dated February 23, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. It also requested that she clarify whether she was claiming an occupational disease or
a traumatic injury. OWCP afforded appellant 30 days to respond.
In a March 23, 2018 response, appellant related that, in her position as secretary treasurer
of the local union, she had uncovered questionable financial actions taken by the union. 3 An
outside audit had revealed improprieties and the union had been placed under Trusteeship.
Appellant alleged that, when officials came to assume control over the union, the union president,
R.R., yelled that it was because appellant was “f**king” those higher-ups in rank and “sleeping
around with them.” R.R.’s associates, C.L., B.S., and E.C., agreed with him and began to spread
this rumor throughout the office. Employees who were angry about the audit posted falsified
minutes of union meetings and a photograph of appellant from Facebook on bulletin boards at
work. Appellant also alleged that they vandalized her vehicle at work. Coworkers that appellant
did not know approached her and asked if she was sleeping with the man who took over the union.
Appellant further asserted that on August 17, 2017 someone had placed a death threat on
her office desk threatening her and her family and accusing her of being a “snitch b***h.” Her
home was vandalized with shattered glass bottles. Appellant sold her house quickly at a reduced
price because she was afraid. She further asserted that on February 12, 2018 her second-line
supervisor, S.B., called her into his office and informed her that “some extremely vulgar/graphic
images of pornography” altered to resemble her had been placed in various locations at work.
Appellant’s cellphone number was next to the face on the image with instructions to call the
number for a “good time.”
Appellant related that she had filed an Equal Employment Opportunity (EEO) complaint
after receiving the death threat. The Criminal Investigation Division (CID) and military police
(MP) had investigated the threat. They found that some parts of her claim did not deal with
employing establishment issues.
In a March 29, 2018 statement, appellant advised that her claim was for an occupational
disease rather than a traumatic injury. She attributed her condition to harassment, sexual
3

Appellant also submitted medical evidence in support of her claim.

2

harassment, a hostile work environment, death threats, vandalism, slander, and defamation of
character.
Thereafter, OWCP received a September 14, 2017 closed investigation report from the CID
of the employing establishment. M.L., the investigator, advised that an individual had placed a
letter on appellant’s desk, noting that “snitches get stitches” and threatening her and her family.
The investigator indicated that appellant “believed [that] the letter and other harassing incidents
were due to [appellant’s] reporting the misuse of [u]nion [f]unds,” but did not know who had put
the letter on her desk. Appellant gave M.L. a flyer showing a social media post accusing her of
making false accusations about the union after partying with union members. M.L. noted that the
former union president had been interviewed about the letter, but could not provide any
information. The investigator advised that the investigation was closed as no “logical leads or
suspects have been discovered….”
In a witness statement dated September 28, 2017, L.P. related that, during a union meeting
on July 6, 2017, R.R. had used profanity and accused appellant of sleeping with another individual.
In a February 6, 2018 e-mail, P.K. confirmed that on July 6, 2017 R.R. had used profanity and
vulgarity regarding appellant.
In a January 11, 2018 interrogatory, appellant related that on July 5, 2017 the local union
had been put under trusteeship after she had requested an external audit that found a
misappropriation of funds. Affected individuals had spread lies about her and placed pictures on
a bulletin board on August 10, 2017. Appellant reported the incident to her supervisor, S.S., who
tried to ascertain whether cameras covered the area. The plant manager, C.S., advised her that it
was a union matter and ignored her concerns. On August 14, 2017 an employee appellant did not
know yelled at her and asked if she was “f**king” the new union leader. On August 17, 2017 at
the start of her work shift, she found a death threat saying that snitches get stitches, that she and
her family would pay, and that she should die because she was a “snitch b***h.” Appellant did
not know who had left the threatening letter on her desk. She immediately reported the incident
to her supervisors.
On February 13, 2018 M.P., the employing establishment commanding officer, partially
dismissed appellant’s September 28, 2017 discrimination complaint. He found that the employing
establishment was not the proper agency for the incidents that had occurred at union meetings on
July 6 and 18, 2017 as well as an August 8, 2017 occurrence when a union vice president had
yelled at her and used profanity outside the workplace as the matters arose out of union concerns.
M.P. also dismissed appellant’s claim that she had to sell her residence on January 10, 2018 due
to vandalism as she had not shown damages by the employing establishment. He noted that an
investigation was pending into the February 12, 2018 placement of a pornographic flyer at work
with her name and cellphone number.
In an undated statement received on April 2, 2018, appellant related that, when she started
work in 2010, G.S., a coworker, had spread rumors that she had worked as a stripper and was a
kind of prostitute of the former manager. G.S. and C.H. had complained about what she wore to
work and her supervisor sent her home to change clothes. In 2012, appellant had undergone
treatment for cancer and G.S. had asserted that she was disgusting and leaving hair in the restroom.
G.S. made a hurtful comment after the death of her brother. On May 3, 2017 appellant requested

3

her supervisor’s help processing a document. When she returned to the office, G.S. and others
thought that it was unfair that she was being trained to process documents accurately.
In an April 27, 2018 letter, OWCP advised appellant that it was adjudicating her claim as
an occupational disease claim. It again requested that she provide the evidence necessary to
establish her claim as set forth in its February 23, 2018 development letter.
In a June 12, 2018 development letter, OWCP requested that the employing establishment
provide comments from a knowledgeable supervisor regarding the accuracy of appellant’s
allegations and statements from the individuals referenced in the allegations, including G.S., R.R.,
C.L., B.S., and E.C. It further requested that it clarify whether she was on official time for the
July 6, 2017 union meeting or any of the other dates that involved union matters.
In a June 27, 2018 response, the employing establishment maintained that appellant’s
issues had begun over union matters and, thus, it had no authority to take corrective measures. It
noted that it was unaware of the findings of the CID, but that “no person was culpable in any
wrong-doing based on her allegations.” The employing establishment enclosed statements with
its response.
In a June 25, 2018 statement, C.L. advised that she was not at the July 6, 2017 union
meeting and had no knowledge of false union minutes posted on a bulletin board.
R.R. submitted a June 21, 2018 statement denying he was at the July 6, 2017 meeting and
advising that he had no knowledge of anyone placing union information on a bulletin board at
work. He indicated that he did not know whether appellant had used official time for the July 6,
2017 union meeting or other union activity.
In an undated statement, B.S. asserted that R.R. had not raised his voice or accused her of
sexual impropriety. He denied that anyone had posting false minutes of union meetings on the
bulletin board. B.S. also denied using vulgarity in reference to appellant.
In a June 28, 2018 statement, R.V. advised that on July 10, 2017 appellant had notified her
that “somebody had posted something bad about [appellant] on the bulletin board” and that R.R.
had stated inappropriate things about her at a union meeting. She did not want to file a complaint.
R.V. advised her to contact C.S., the plant manager. C.S. had informed her that he could
investigate who posted something on a bulletin board if she provided names, but that he had no
control over things that took place in union meetings. Appellant did not want to give the
individuals’ names.
By decision dated July 12, 2018, OWCP denied appellant’s emotional condition claim. It
found that she had not established any compensable employment factors.
On July 21, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an incident report dated September 18, 2018, appellant related that her coworker’s car,
which she had driven to work, had been vandalized in the parking lot. The officer noted that the

4

coworker believed that it had been vandalized because appellant had been driving it as she had
previously received threats due to whistleblowing in connection with union activity.
On December 7, 2018 appellant submitted a time and attendance screenshot, which she
asserted showed that she was in regular work status and not on leave or on official time on
August 17, 2017 and February 12, 2018.
A telephonic hearing was held on December 14, 2018. Appellant’s representative asserted
that she had experienced retaliation after reporting misconduct. He noted that on February 10,
2018 her supervisor told her that material “offensive to any person” had been found and distributed
to multiple locations throughout the base. Appellant also received death threats and had her car
vandalized. He related that she was at work and was not conducting union matters or on official
time when the harassment, death threat, and car vandalism had occurred. Appellant testified that,
on August 17, 2017 S.S., her first-line supervisor, had called security about the death threat. The
MPs arrived and turned the case over to the CID because it involved a death threat. Appellant had
not experienced problems prior to reporting the misappropriation of funds, so she believed that the
incidents were connected. The union vice-president made inappropriate comments to her on
August 8, 2017 after work hours, but on the premises of the employing establishment. Coworkers
heard rumors that appellant was sleeping around. A coworker’s car was vandalized in
August 2018 on base after she drove the vehicle. G.S., a coworker, spread rumors that appellant
had been a former manager’s private stripper. Appellant related that she saw R.R., the former
union president, every day because he worked in a nearby cubicle. She asserted that, when she
returned to work after being off due to stress, the pictures of her were still being passed around the
office.
Following the hearing, appellant submitted a copy of the threatening letter and the
pornographic photographs. She also submitted an August 17, 2017 e-mail from R.S.,4 the plant
manager, advising that on that date a note had been left on an employee’s computer threatening
the employee and family, and that information about the employee had also been placed on an
official bulletin board in violation of rules and policy. R.S. advised that an investigation was
currently being conducted to find the person or persons responsible.
On August 17, 2017 S.S. advised that on that date appellant had showed her a paper that
contained “clearly a written threat of harassment stating harm to [appellant] and her family.” She
had called the MPs and also emergency personnel because appellant required medical attention.
The MPs had contacted CID because the threat was “above what he is allowed to process.” The
CID agent had possession of a picture of appellant with a harassing caption from the union bulletin
board.
In a February 13, 2018 e-mail to the employing establishment, R.S. advised that
pornographic images of an employee had been placed at multiple locations throughout the
workstation. He indicated that the conduct would not be tolerated and was being investigated.

4

R.S. is also referred to in the record by his nickname, C.S.

5

By decision dated May 10, 2019, OWCP’s hearing representative affirmed the July 12,
2018 decision, finding that the events that appellant had established as factually occurring
pertained to union matters unrelated to the performance of her federal work duties.
On December 2, 2019 appellant, through counsel, requested reconsideration.
By decision dated March 12, 2020, OWCP denied modification of the May 10, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, 6 including that he or she sustained an injury in the
performance of duty, and that any specific condition or disability f or work for which he or she
claims compensation is causally related to that employment injury. 7 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on a
traumatic injury or an occupational disease.8
To establish an emotional condition in the performance of duty, a claimant must submit:
“(1) factual evidence identifying an employment factor or incident alleged to have
caused or contributed to his or her claimed emotional condition; (2) medical
evidence establishing that he or she has a diagnosed emotional o r psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the
accepted compensable employment factors are causally related to the diagnosed
emotional condition.”9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable. 10 However, disability is not compensable when it results from factors such as an

5

Supra note 2.

6

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

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

8

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

9

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

10

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

6

employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur. 12
Mere perceptions of harassment are not compensable under FECA. 13
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 14 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 15
However, the Board has recognized an exception to this general rule when employees
performing representational functions, which entitle them to official time, are injured when in the
performance of duty. 16 The underlying rationale for this exception is that an activity undertaken
by an employee in the capacity of a union official may simultaneously serve the interest of the
employer.17 OWCP’s procedures indicate that representational functions include authorized
activities undertaken by employees on behalf of other employees pursuant to such employees’
right to representation under statute, regulation, executive order, or terms of a collective bargaining
agreement.18
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 19 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a

11

Lillian Cutler, id.

12

S.L., Docket No. 19-0387 (issued October 1, 2019); S.B., Docket No. 18-1113 (issued February 21, 2019).

13

Id.

14

R.L., Docket No. 18-1375 (issued May 1, 2019); Jimmy E. Norred, 36 ECAB 726 (1985).

15

R.L., id; J.G., Docket No. 17-1948 (issued September 13, 2018).

16

J.G., id.; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing activities
related to the internal business of a labor organization such as soliciting new members or collecting dues are not
considered to be in the performance of duty. The singular fact that one is on paid official time for union representation
is not enough to establish that every interaction during such official time is within the performance of duty).
17

J.G., id.; Marie Boylan, 45 ECAB 338 (1994).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16(b) (July 1997).

19

See R.B., Docket No. 19-0434 (issued November 22, 2019); O.G., supra note 6.

7

compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence. 20
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has not attributed her condition to the performance of her regularly or specially
assigned duties under Cutler.21 Instead, she maintained that she experienced harassment at work
after she had reported financial impropriety by the union in her role as union secretary and
treasurer.
There is no dispute that on August 17, 2018 someone placed a threatening letter on
appellant’s work desk. Appellant’s supervisor confirmed that appellant had received the
threatening letter and called the MPs, who contacted the CID. The Board has held that verbal and
written threats, when sufficiently detailed by the claimant and suppo rted by evidence, may
constitute compensable employment factors. 22 Appellant has established with corroborating
evidence that she received written threats made against her and her family. The Board has
recognized the compensability of threats when the factual aspects of such claimed threats are
established. 23 The Board finds that the letter left on appellant’s desk, which threatened her with
death and also threatened her family, rises to the level of a credible bodily threat. 24 Consequently,
the Board finds that she has established a compensable employment factor with regard to the death
threat.25
Appellant also attributed her condition to the placement of pornographic pictures
purporting to be of her, noting her cellphone number, in multiple locations around her worksite on
February 12, 2018. Harassment and discrimination by supervisors and coworkers, if established
as occurring and arising from the performance of work duties, can constitute a compensable work
factor.26 A claimant, however, must substantiate allegations of harassment and discrimination with
probative and reliable evidence. 27
Appellant maintained that on February 12, 2018 her second-line supervisor, S.B., told her
that vulgar and graphic images altered to resemble her had been placed throughout the work
20

Id.

21

Supra note 11.

22

J.W., Docket No. 17-0999 (issued September 4, 2018).

23

See K.W., Docket No. 20-1504 (issued July 30, 2021); Z.S., Docket No. 16-1783 (issued August 16, 2018).

24

See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant
that he would be “among the nonliving” was a credible bodily threat directed at the claimant).
25

See J.Z., Docket No. 19-1156 (issued July 28, 2020).

26

See M.S., Docket No. 19-1589 (issued October 7, 2020).

27

See A.F., Docket No. 29-0525 (issued September 14, 2020); Robert Breeden, 57 ECAB 622 (2006).

8

location. In a February 13, 2018 e-mail to the employing establishment, R.S., the plant manager,
advised that pornographic pictures had been placed throughout work and asserted that the conduct
would not be tolerated. While appellant expressed her belief that the images were placed around
work as retaliation for union whistleblowing activities, there is no evide nce of record from the
employing establishment identifying the perpetrator. The incident occurred while appellant was
performing her employment duties rather than union activities and the images were placed
throughout the work location. The evidence factually supports that a coworker placed graphic and
vulgar images of a sexual nature purporting to be of appellant around her work location and, thus,
she has established a compensable work factor. 28
Appellant further attributed her condition to R.R. yelling at her and accusing her of sleeping
with the new union head at a July 6, 2017 union meeting. She related that she had uncovered
financial irregularities and had called for an outside audit of the union and , as a result, the union
had been placed under Trusteeship. When officials arrived to take control of the union, R.R. yelled
at her and used profanity. Appellant maintained that on August 10, 2017 union members angry
about the audit had posted false union minutes and photographs of her on the bulletin board at
work. She advised that R.R.’s friends spread rumors about her around the office. Appellant has
not alleged that she was performing representational functions or was on official union time at the
time of these incidents. As there is no connection between these incidents and her employment,
the actions taken by the union members in reaction to the investigation and audit did not occur in
the performance of duty and are not compensable under FECA. 29
Appellant maintained that on July 18, 2017 her car was scratched and that on
September 18, 2018 a coworker’s car that she had driven was vandalized. She also asserted that
her home was vandalized. Appellant, however, has not submitted any evidence establishing that
these incidents occurred as part of her employment duties or evidence that the vandalism was the
result of harassment by coworkers. 30 Thus, she has not established a compensable work factor.
Appellant also maintained that a coworker had approached her and asked her about rumors
of a sexual nature circulating about her and that after work on August 8, 2017 B.S. called her a
whore and liar. She further alleged that a coworker, G.S., had accused her of being a stripper, told
others that the hair in the restroom was from her and that she was disgusting, attacked her for
speaking with her supervisor for guidance, complained about her work clothes, and made an
unkind comment when her brother passed away. Appellant, however, has not provided any
evidence such as witness statements supporting her allegations of harassment by either of the
unknown coworkers, B.S. or G.S.31 Consequently, she has not established a compensable work
factor with respect to these allegations. 32

28

See I.D., Docket No. 16-0581 (issued December 12, 2016).

29

Id.

30

See J.B., Docket No. 070664 (issued September 13, 2007).

31

Id.

32

See L.S., Docket No. 18-1471 (issued February 26, 2020); S.B., Docket No. 11-0766 (issued October 20, 2011).

9

The case will, therefore, be remanded for an evaluation of the medical evidence to
determine whether appellant has established an emotional condition causally related to the
compensable employment factors. 33 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proc eedings
consistent with this decision of the Board.
Issued: March 18, 2022
Washington, DC

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

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

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

33

See D.B., Docket No. 19-1310 (issued July 21, 2020).

10