United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-85
Issued: August 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 6, 2010 appellant filed a timely appeal from an June 1, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 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 that the September 23, 2004 wage-earning
capacity determination should be modified as of October 18, 2005.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By order dated August 3, 2008, the
Board remanded the case to OWCP for a proper decision on the issue presented.2 The Board
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-159 (issued August 3, 2008).

noted that OWCP had issued a September 23, 2004 wage-earning capacity determination, and
appellant claimed compensation for wage loss as of October 18, 2005. The issue, therefore, was
whether the wage-earning capacity determination should be modified.
In a letter dated September 9, 2009, OWCP requested that appellant submit medical
evidence as to whether her work injury had changed or worsened on or after October 18, 2005.
By decision dated November 9, 2009, it denied modification of the wage-earning capacity
determination. OWCP concluded that appellant’s claims for disability for work after October 1,
2009 should be denied.3
By letter dated December 2, 2009, appellant requested a hearing before OWCP’s hearing
representative. A hearing was held on March 11, 2010. By decision dated June 1, 2010,
OWCP’s hearing representative denied modification of the wage-earning capacity determination.
The hearing representative stated, “The claimed period of disability was denied based on the
weight of medical opinion, established by the referee report from Dr. [Robert] Collins.”
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.4 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.5
ANALYSIS
Appellant filed claims for compensation commencing October 18, 2005. Since there was
a September 23, 2004 wage-earning capacity in place, the issue is whether a modification of this
determination was warranted. As noted, a modification may be established if there is a material
change in the nature and extent of the injury-related condition. In this case, OWCP accepted that
in a motor vehicle accident on February 6, 2002, appellant sustained cervical, dorsal and lumbar
strains, right knee and chest wall contusions, L4-5 disc herniation and unspecified disorder of the
bursae and tendons of the right shoulder.
On October 18, 2005 appellant was seen by Dr. Hampton Jackson, an orthopedic
surgeon, who indicated that appellant was seen for conditions caused by the work injury of
February 6, 2002. Dr. Jackson noted worsening back and shoulder symptoms, and indicated that
arthroscopic surgery was recommended for the shoulder. He stated that appellant should remain
off work until surgery and for treatment of sciatica. Dr. Jackson reiterated that these conditions
were causally related to the February 6, 2002 work injury.
3

Appellant had submitted claims for compensation (Form CA-7) for intermittent hours. One of the CA-7 forms
was dated November 2, 2009 and covered the period October 1 to 31, 2009.
4

Sue A. Sedgwick, 45 ECAB 211 (1993).

5

Id.

2

OWCP determined that further development of the medical evidence was warranted, and
appellant was referred to Dr. Robert Smith, an orthopedic surgeon. One of the questions posed
by OWCP was whether appellant was disabled as of October 18, 2005 due to an employment
injury. Dr. Smith, however, never addressed the issue in his December 22, 2005 report. He did
not discuss the October 18, 2005 medical evidence or provide an opinion on disability
commencing that date. When OWCP found a conflict in the medical evidence under 5 U.S.C.
§ 8123(a),6 there was no conflict on the specific issue of appellant’s employment-related
condition on October 18, 2005. Moreover, Dr. Collins, the physician selected as a referee, also
provided no opinion on the issue in his May 18, 2006 report. He did not refer to appellant’s
work stoppage, medical condition on October 18, 2005 or provide any opinion on the specific
medical issue that is presented in this case. Dr. Collins addressed only findings as of the date of
examination. The hearing representative’s finding that Dr. Collins represented the weight of the
medical evidence on the “claimed period of disability” is not supported by the record.
The Board finds that the additional development of the medical evidence did not provide
any probative evidence on the issue of whether there was a material change in the employmentrelated condition as of October 18, 2005. As OWCP undertook development of the evidence, it
has the responsibility to obtain a report which resolves the issues presented in the case.7 The
case will be remanded for additional development of the medical evidence. The second opinion
examiner should be asked to provide a rationalized medical opinion on the issue of whether there
was a material change in an employment-related condition as of October 18, 2005. After such
further development as the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the case must be remanded to OWCP for further development of the
evidence on the issue presented.

6

5 U.S.C. § 8123(a) provides that, if there is a disagreement between a physician making the examination for the
United States and the employee’s physician, a third physician is selected to make an examination.
7

See Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32 ECAB 863 (1981).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2010 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: August 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, New York, NY, Employer
__________________________________________

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

Docket No. 15-1353
Issued: October 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 1, 2015 appellant filed a timely appeal from a May 11, 2015 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 to
consider the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate wage-loss compensation
and medical benefits effective May 11, 2015.
FACTUAL HISTORY
OWCP had accepted that appellant, then a 38-year-old correctional officer, sustained
cervical, thoracic, and lumbosacral sprain/strains causally related to a September 15, 2004
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal. The Board reviews only evidence that was before OWCP at
the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1).

employment incident. Appellant received wage-loss compensation and medical benefits on the
periodic rolls commencing October 18, 2004.
The case has been before the Board on two prior appeals. In a decision dated February 8,
2012, the Board reversed a May 19, 2011 OWCP decision terminating appellant’s wage-loss
compensation and medical benefits.3 The Board found that the report of the second opinion
physician, Dr. William Dinenberg, a Board-certified orthopedic surgeon, did not provide a
rationalized medical opinion to support his conclusion that the accepted employment-related
conditions had resolved. The Board therefore concluded that OWCP had not met its burden of
proof to terminate appellant’s wage-loss compensation and medical benefits.
Following the Board’s reversal of the first termination decision, OWCP issued a second
decision dated April 8, 2013 terminating compensation for wage-loss and medical benefits.
According to OWCP, an August 6, 2012 report from a second opinion physician, Dr. Jonathan
Black, a Board-certified orthopedic surgeon, was sufficient to terminate compensation. The
Board reversed this termination by decision dated November 13, 2013.4 The Board found that
Dr. Black had reported there were no objective findings, but had failed to provide additional
explanation. Dr. Black had not discussed the diagnostic studies or examination findings with
respect to his opinion that the record contained no evidence of objective findings to substantiate
that appellant continued to have residuals of the accepted conditions. The history of the case as
provided by the Board in its prior decisions is incorporated herein by reference.
On return of the case record, OWCP referred appellant for a second opinion examination
by Dr. Fanourious Ferderigos, a Board-certified orthopedic surgeon. In his report dated
January 24, 2014, Dr. Ferderigos provided a history, review of medical records, and results on
examination. With respect to the spine he noted that appellant reported complaints of severe
pain with even a light touch. Dr. Ferderigos reported range of motion results and that appellant
did not appear to have any severe hypertoxicity on the lumbar spine to correlate with subjective
findings. He noted that a magnetic resonance imaging (MRI) scan in the office showed
satisfactory alignment of the cervical and lumbar spine, with no evidence of spondylolisthesis,
compression fractures, or other osseous abnormality. Dr. Ferderigos opined that there were no
objective findings for the accepted conditions, only subjective complaints. He opined that the
accepted conditions had resolved and there were no objective findings to support continuing
disability.
By letter dated March 3, 2014, OWCP informed appellant that its procedures required
that a claimant on prolonged disability submit periodic medical reports to support a claim of
continuing disability. Appellant was informed that he should be examined by a treating
physician, following which a current narrative report from the physician regarding the status of
his accepted work condition should be submitted to OWCP. OWCP did not receive any reports
from a treating physician following this request.
On April 7, 2014 OWCP received a March 29, 2014 letter from appellant in which he
informed appellant of a new address in Lakeland, Florida.
3

Docket No. 11-1565 (issued February 8, 2012).

4

Docket No. 13-1217 (issued November 13, 2013).

2

By letter dated March 26, 2015, addressed to appellant’s last known address in Lakeland,
Florida, OWCP advised him that it proposed to terminate compensation for wage-loss and
medical benefits based on the second opinion physician’s report. It indicated that he had 30 days
to provide additional evidence or argument.
In a decision dated May 11, 2015, OWCP terminated wage-loss compensation and
medical benefits. It found the weight of the evidence was represented by Dr. Ferderigos. The
decision was sent to appellant’s last known address.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, it may not terminate compensation without establishing that
the disability had ceased or that it was no longer related to the employment.5 The right to
medical benefits for an accepted condition is not limited to the period of entitlement to
compensation for disability. To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.6
ANALYSIS
In the present case, OWCP accepted that appellant sustained cervical, thoracic and
lumbosacral sprain/strains causally related to a September 15, 2004 employment incident. It
referred appellant for a second opinion examination by Dr. Ferderigos. In his January 24, 2014
report, Dr. Ferderigos provided a complete report with a history, review of medical evidence, and
results on examination. He opined that appellant had no objective findings of a continuing
employment-related condition. This is consistent with an earlier August 6, 2012 report from
Dr. Black, but unlike the report of Dr. Black, the January 24, 2014 report provides supporting
medical rationale for the opinion. Dr. Ferderigos discussed current MRI scan results and found
no evidence of spondylolisthesis or other abnormality. In addition to discussing diagnostic
testing, he noted the physical examination results were limited to subjective findings which were
not correlated with objective findings. Dr. Ferderigos opined that, based on his examination and
test results, appellant’s employment-related conditions had resolved.
The Board finds that the report of Dr. Ferderigos represents the weight of the evidence in
this case. Appellant did not submit any current medical evidence supporting a continuing
employment-related condition or disability. It is OWCP’s burden of proof, and for the reasons
stated, the Board finds that OWCP met its burden of proof to terminate wage-loss and medical
compensation benefits effective May 11, 2015.
On appeal, appellant asserts that benefits were terminated before he received the notice of
proposed termination and final termination decision. The Board notes that the March 26, 2015
notice of proposed termination and the May 11, 2015 termination decision were sent to

5

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993).

6

Furman G. Peake, 41 ECAB 361 (1990).

3

appellant’s last known address in Lakeland, Florida, pursuant to regulations.7 In the absence of
evidence to the contrary, it is presumed that a notice mailed to an addressee in the ordinary
course of business was received by the addressee.8 There was no probative evidence to the
contrary in this case. The Board finds that the presumption that the notice of proposed
termination and final decision were properly mailed and received by appellant applies in the
present case.
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 OWCP met its burden of proof to terminate wage-loss compensation
and medical benefits effective May 11, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2015 is affirmed.
Issued: October 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

20 C.F.R. § 10.127 provides that “[a] copy of the decision shall be mailed to the employee’s last known
address.”
8

See Larry L. Hill, 42 ECAB 596, 600 (1991).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.Z., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, SOUTHERN PUEBLOS
AGENCY, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 21-0269
Issued: July 28, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
On December 16, 2020 appellant sought an appeal from an August 28, 20201 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0269.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act.2
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed his appeal.3 The case record as transmitted to the Board does not contain a final
adverse decision of OWCP issued within 180 days from the date of docketing of the current appeal.
The August 28, 2020 decision accepted appellant’s claim for instability of the right knee joint;
therefore, it was not adverse to appellant. As there is no final adverse decision issued by OWCP
1

The Board notes that appellant requested an appeal from a purported December 16, 2020 OWCP decision.
However, there is no such decision of record. The most recent decision is dated August, 28, 2020.
2

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

3
20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of OWCP.”

over which the Board may properly exercise jurisdiction, the Board concludes that the appeal
docketed as No. 21-0269 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0269 is dismissed.
Issued: July 28, 2021
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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Greensboro, NC,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1086
Issued: April 7, 2020

Case Submitted on the Record

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

On April 15, 2019 appellant filed a timely appeal from a December 14, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned the appeal Docket No. 19-1086.
On November 1, 2018 appellant, then a 56-year-old mail handler, filed an occupational
disease claim (Form CA-2) for a left ankle injury that she attributed to wear and tear from standing
long hours on concrete floors. She noted that her original visit to her physician on September 18,
2017 was for a possible rupture of the Achilles tendon. Appellant has a previously accepted
occupational disease claim for rupture of the left Achilles tendon, contracture of the left tendon
sheath, left lateral epicondylitis, bilateral plantar fibromatosis, left cyst of bone, and other bilateral
congenital deformities of the feet. OWCP assigned that claim OWCP File No. xxxxxx042.
By decision dated December 14, 2018, OWCP denied appellant’s claim, finding that she
had not established exposure to the claimed work factor(s) because she had not replied to the
questionnaire contained in its November 9, 2018 development letter. It concluded, therefore, that
the requirements has not been met to establish an injury as defined by FECA.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when

correct adjudication of the issues depends on frequent cross-referencing between files. 1 If a new
injury case is reported for an employee who previously filed an injury claim for a similar condition
or the same part of the body, combining of the files is required.2
The present claim, File No. xxxxxx785 alleges a left ankle injury. OWCP previously
accepted several left lower extremity conditions as work related under File No. xxxxxx042. File
No. xxxxxx042, however, has not been administratively combined with the present file, and the
present file does not contain prior relevant evidence contained in OWCP File No. xxxxxx042. As
such, the Board is unable to review the prior factual and medical evidence relating to appellant ’s
accepted conditions under OWCP File No. xxxxxx042, which relate to similar conditions and the
same bodily member that is contested in the present claim.
For a full and fair adjudication, the case must be returned to OWCP to administrative ly
combine the current case record, File No. xxxxxx785, with File No. xxxxxx042. 3 Following this
and other such further development as it deems necessary, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: April 7, 2020
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

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id.; L.G., Docket No. 18-1676 (issued August 22, 2019); D.L., Docket No. 17-1588 (issued January 28, 2019);
K.T., Docket No. 17-0432 (issued August 17, 2018).
3

K.T., id.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 08-38
Issued: March 19, 2008

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 October 2, 2007 appellant timely appealed the August 7, 2007 merit decision of the
Office of Workers’ Compensation Programs, which determined that appellant was not entitled to
a schedule award as he did not have a ratable hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has a ratable hearing loss entitling him to a schedule
award.
FACTUAL HISTORY
On December 3, 2004 appellant, then a 57-year-old electronic mechanic,
filed an occupational disease claim alleging that he sustained bilateral hearing loss due
to factors of his employment.
Appellant submitted an unsigned audiogram dated
November 15, 2004 and a chronology of audiogram results dated on February 2, 2005, prepared
by Audiologist Angela Williamson.

The Office referred appellant to Dr. Dwayne Atwell, an otolaryngologist, for a second
opinion evaluation on March 30, 2005. An audiogram was completed on March 30, 2005, which
reflected testing at frequency levels including those of 500, 1,000, 2,000 and 3,000 cycles per
second (cps) and revealed decibel losses on the left of 10, 10, 10 and 15, respectively and on the
right of 20, 15, 15 and 15, respectively. Dr. Atwell diagnosed moderate high frequency
neurosensory loss. He opined that the hearing loss was due to appellant’s employment as he
worked as a mechanic and was exposed to significant noise.
On May 6, 2005 the Office accepted appellant’s claim for bilateral hearing loss.
On July 25, 2007 appellant requested a schedule award. On August 1, 2007 the district
medical adviser reviewed the March 30, 2005 audiogram results and used them to calculate
appellant’s impairment rating finding that he had a zero percent impairment and therefore did not
have a ratable hearing loss.
On August 7, 2007 the Office denied appellant’s request for a schedule award, finding
that his bilateral hearing loss was not severe enough to be considered ratable.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 Then, the “fence” of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
1

The Act provides that for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides at 250 (5th ed. 2001).

5

Id.

6

Id.

2

calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, and then added to the greater loss and the total is divided by six to arrive at the amount
of the binaural hearing loss.7
ANALYSIS
In support of his claim for an employment-related hearing loss, appellant submitted an
unsigned audiogram dated November 15, 2004 and a chronology of audiogram results dated and
prepared by Audiologist Williamson on February 2, 2005. This evidence did not meet the
Office’s criteria to establish an employment-related loss of hearing. The audiograms were not
certified by a physician as being accurate. The Office does not have to review every uncertified
audiogram, which has not been prepared in connection with an examination by a medical
specialist.8
Due to the lack of appropriate medical evidence, the Office referred appellant for a
second opinion examination by Dr. Atwell, a Board-certified otolaryngologist. An Office
medical adviser reviewed the audiogram and Dr. Atwell’s report and correctly applied the
Office’s standardized procedures to the March 30, 2005 audiogram. Testing for the right ear at
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 20, 15, 15 and 15,
respectively. These decibel losses were totaled at 65 and divided by 4 to obtain the average
hearing loss per cycle of 16.25. The average of 16.25 was then reduced by the 25 decibel fence
(the first 25 decibels are discounted as discussed above) to equal 0 decibels for the right ear. The
0 was multiplied by the 1.5 resulting in a 0 percent loss for the right ear. Testing for the left ear
at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 10, 10, 10 and
15, respectively. These decibel losses were totaled at 45 and divided by 4 to obtain the average
hearing loss per cycle of 11.25. The average of 11.25 was then reduced by the 25 decibel fence
to equal 0 decibels for the left ear. The 0 was multiplied by 1.5 resulting in a 0 percent loss for
the left ear. The Office medical adviser properly found that appellant did not have a ratable
hearing loss in either ear under the A.M.A., Guides. The Board finds that the Office medical
adviser applied the proper standards to the March 30, 2005 audiogram. The result is a nonratable
hearing loss bilaterally.9
CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing such that he is
entitled to a schedule award.

7

Id.

8

Robert E. Cullison, 55 ECAB 570 (2004).

9

To determine the binaural hearing loss, the lesser loss is multiplied by five and added to the greater loss and
divided by six. Appellant has a zero percent binaural hearing loss.

3

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2008
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

4


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

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

Docket No. 15-0411
Issued: September 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 12, 2014 appellant filed a timely appeal from a September 15, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On September 21, 2013 appellant, then a 41-year-old secretary of office automation, filed
an occupational disease claim alleging that she worked in a hostile environment. She stated that
she had filed three Equal Employment Opportunity (EEO) complaints against her supervisor
1

5 U.S.C. § 8101 et seq.

Robert Wolak for discrimination and was forced to defend herself against employing
establishment attorneys. Appellant asserted that she was harassed, bullied and deprived of
compensation on several occasions. All of these events caused her stress. Appellant became
aware of her condition and its relationship to her employment on February 1, 2012. She did not
stop work.
On September 30, 2013 OWCP asked appellant to submit additional evidence that
included a detailed description of the work incidents that contributed to her claimed illness. It
also requested that the employing establishment to comment on appellant’s statements.
In a January 6, 2012 statement, appellant alleged that on April 15, 2010 a network chief
information officer visited the employing establishment and advised during a staff meeting that
everyone who wanted to be cross trained would be permitted to do so. In a February 11, 2013
statement, she explained that on February 8, 2013 she notified Mr. Wolak that her time card had
not been posted for the entire pay period, and that this had occurred several times causing errors
in her time card and pay. Appellant stated that Mr. Wolak later responded that “We’re working
on it; I got your email!” She allegedly requested that her time card should be posted daily and
Mr. Wolak responded with what appellant described as a threatening, crazed look in his eyes,
pointed at her, and stated “I don’t like your insubordination!” Appellant indicated that she had
two pending EEO complaints against Mr. Wolak and felt her work environment was hostile,
threatening and intimidating. In a November 5, 2013 statement, she alleged that in October 2007
Mr. Wolak yelled at her about an e-mail he had instructed her to send. Appellant claimed that on
July 30, 2013 a payroll technician and supervisor improperly placed her in leave without pay
status even though she had leave to cover her absence. She noted that she had applied for the
leave donor program and was approved, but when she returned in September 2013, she had
nevertheless been placed in leave without pay status for 10 days. This greatly affected
appellant’s finances. Appellant alleged that she asked to work overtime but was denied. She did
acknowledge that the payroll error was corrected within two weeks.
Paulette Rimpson, a supply technician, noted in an undated statement, that on June 14,
2011 she had overheard a conversation between appellant and Mr. Wolak over coverage of the
office for lunch. She stated that appellant asked Mr. Wolak what he intended to do and he
responded “what are you going to do about it?” Appellant replied that it was not her
responsibility to tell anyone to cover that desk and she was entitled to a lunch break. Mr. Wolak
spoke to another coworker in the vicinity: “She’s yelling at me, I want you to write a report of
contact.” A February 11, 2013 statement from Cynthia Culley, a coworker, alleged that on
February 8, 2013 she observed a man from the same office approach appellant’s desk and point
his finger at her in a threatening manner.
In an e-mail dated September 20, 2013, Melody Link, a nurse manager, requested
permission from Mr. Wolak to have appellant do overtime in her department. Mr. Wolak
requested that Ms. Link send a formal memorandum requesting the change. He stated that his
department was funded separately from Ms. Link’s department and he was unaware how funds
could be transferred to cover this. Mr. Wolak inquired as to whether there was a part-time
position into which appellant could be placed so she could be paid by Ms. Link’s department.
In a November 12, 2013 request for reasonable accommodation, appellant stated that for
many years she worked in a hostile environment of discrimination, harassment, bullying, unclear
2

work assignments, and compensation deprivation. She noted that she was unable to perform the
duties of her job. Appellant submitted the employing establishment’s policy regarding
designation of timekeepers. She also submitted the employing establishment’s policy on EEO
and unlawful discrimination.
Appellant also provided several documents pertaining to an EEO complaint. In an
undated EEO document, she stated that in March or April 2011 Mr. Wolak informed her twice
that she could not take notes during an unscheduled staff meeting in which others took notes.
Appellant asserted that on May 27, 2011 the assistant chief information officer announced that
staff could leave 59 minutes early due to the Memorial Day holiday. She alleged that when she
tried to confirm early dismissal, Mr. Wolak spoke to her sharply stating “Of course! Why
wouldn’t it!” Appellant asserted that on June 14, 2011 she informed Mr. Wolak that she was
going to lunch and inquired as to who would cover the desk and he replied “What are you going
to do about it!” She indicated Mr. Wolak stated “Want to bet!” and later accused appellant of
yelling at him. Additionally, on June 16, 2011 appellant learned that Mr. Wolak stated to a male
coworker that he should never get a wife like her.
During an April 5, 2013 EEO hearing, Vivian Brandon, a coworker, testified that she was
present at a meeting in which Mr. Wolak asked appellant not to take notes. She noted that there
were several incidents in which Mr. Wolak yelled at appellant or made negative comments about
her. Ms. Brandon indicated that it was a common occurrence, but she could not recall the
content of the statements or when they occurred. She noted being present in a meeting with Dale
Nelson, Mr. Wolak’s supervisor, where he indicated that all employees would be able to cross
train. Ms. Brandon noted appellant questioning Mr. Wolak about her job assignments on several
occasions but she did not remember if Mr. Wolak responded. She witnessed Mr. Wolak respond
to appellant in an abrupt manner when she asked questions in 2011. Ms. Brandon noted that she
did not cross train and she was not aware of any technology specialists who cross trained. She
noted that the staff meetings were recorded. Ms. Brandon further noted that she observed
appellant yelling at her coworker including Ms. Stokes. She found that a lot of yelling went on
at work and was more than she experienced in other jobs.
During an April 4, 2013 EEO hearing, El Marco McNair, a coworker, testified that he
recalled an incident where Mr. Wolak got upset, his tone and facial expression changed, when
appellant informed him of work that needed to be done with time cards. He indicated that the
environment was tense. Mr. McNair noted experiencing tense moments with Mr. Wolak and
witnessing tense moments with Mr. Wolak and Tim Langford. He noted Mr. Wolak made a
comment about appellant “something about I wouldn’t marry her or something like that. I don’t
know the specifics of how he said it....” Mr. McNair recalled attending meetings in which
appellant asked questions about the chain of command and Mr. Wolak “blew up” but he was not
sure if it was directed at appellant or the whole group and he could not say it was hostile. When
that happened, Mr. Wolak would tell appellant not to record that portion of the meeting.
Mr. McNair indicated that he never heard Mr. Wolak make racially derogatory statements.
Appellant also provided medical evidence. In a November 19, 2012 report, Dr. Courtney
Bagge, a psychologist, noted seeing appellant on March 1 and 13, 2012 for work stress and
anxiety. She diagnosed major depressive disorder, recurrent, moderate.

3

In a December 4, 2013 decision, OWCP denied appellant’s claim for an emotional
condition as the evidence did not support that appellant had established any compensable factors
of employment.
On July 21, 2014 appellant requested reconsideration.2 She submitted a statement from
Keith Moncure, a coworker, who confirmed that Mr. Wolak raised his voice in a staff meeting
but he could not remember the content of the statement or when it occurred. Mr. Moncure
contended that he worked in a hostile work environment, but could not address whether appellant
had a threatening or tense relationship with Mr. Wolak. Mr. Moncure indicated that in a staff
meeting management advised that staff could be cross trained and appellant inquired as to
whether she could cross train. Management’s response was yes, but in what area was unclear.
He indicated that Mr. Wolak had asked that certain information not be retained from the minutes.
Mr. Moncure stated that he filed his first EEO complaint against Mr. Wolak in 2007, and that he
had filed two EEO complaints relating to Mr. Wolak’s preselection of job candidates.
Appellant submitted e-mails dated December 12, 2007 to Catherine Lutz regarding a final
determination in an EEO complaint filed against Mr. Wolak. She submitted e-mails dated
August 12 to December 10, 2013, detailing her leave issues. A November 18, 2013 e-mail to
Mr. Wolak inquired as to why she was not paid for three hours when she had donated leave. In
response, Mr. Wolak promised that he would look into the leave matter with the acting chief but
that in his opinion the agency had used everything that had been donated to appellant. He further
noted that he did not have authority to approve certain types of absences.
By report dated March 20, 2014, Dr. Clyde Glenn, a Board-certified psychiatrist, noted
that appellant should be moved to another work environment as the current environment was the
source of her stress, anxiety, and depression.
In a decision dated September 15, 2014, OWCP denied modification of the prior
decision. It found that appellant had failed to establish any compensable work factors as the
cause of her claimed condition.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
2

Appellant stated that no final decision had been made on her EEO claim but she also indicated that the judge
found no evidence of discrimination. She did not provide copies of any final decisions or rulings in the matter.
Appellant did submit copies of the employing establishment’s absence and leave policy.
3

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

4

28 ECAB 125 (1976).

4

explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.7 Where the claimant
alleges compensable factors of employment, she must substantiate such allegations with
probative and reliable evidence.8 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.9 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 or her frustration
from not being permitted to work in a particular environment or to hold a particular position.10
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
incidents and conditions at work. OWCP denied her emotional condition claim because she had
failed to establish any compensable employment factors. The Board must review whether these
alleged incidents and conditions of employment are covered employment factors under the terms
of FECA.
The Board notes that appellant’s allegations do not pertain to her regular or specially
assigned duties under Cutler.11 Rather, she has alleged that she was exposed to a hostile work
environment by her supervisor.
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,12 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative
5

See Robert W. Johns, 51 ECAB 137 (1999).

6

Supra note 4.

7

J.F., 59 ECAB 331 (2008).

8

M.D., 59 ECAB 211 (2007).

9

Roger Williams, 52 ECAB 468 (2001).

10

See supra note 4.

11

See supra note 4.

12

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

5

or personnel action established error or abuse by the employing establishment superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.13
Appellant alleged that on April 15, 2010 a network chief offered other employees an
opportunity to cross train but that she had never been given the same opportunity. The Board has
held that an employing establishment’s refusal to give an employee training as requested is an
administrative matter, which is not covered under FECA unless the refusal constitutes error or
abuse.14 Ms. Brandon, appellant’s coworker, testified that she was present at the meeting with
Mr. Nelson who indicated that all employees would be able to cross train. She noted that she did
not cross train and she was not aware of any technology specialists who cross trained. The
Board finds that appellant has not offered sufficient evidence to establish error or abuse
regarding training opportunities. The evidence does not establish that there was an established
cross training program nor that the employing establishment acted unreasonably.
Appellant contends that on several occasions her time card had not been posted for an
entire pay period which caused errors in her pay, that on July 30, 2013 the payroll department
improperly placed her in leave without pay status even though she had leave to cover the
absence, and in November 2013 she was not paid for three hours of leave when leave had been
donated to her. The Board notes that the handling of leave requests and attendance matters are
generally related to the employment, they are administrative functions of the employing
establishment and not duties of the employee.15 The Board finds that the employing
establishment acted reasonably in this administrative matter. As noted, after appellant informed
Mr. Wolak of the time card errors and that her time card should be posted daily, Mr. Wolak did
work to resolve the issue. Appellant acknowledged that the payroll errors were corrected within
two weeks. With regard to the donated leave, Mr. Wolak promised that he would look into the
leave matter with the acting chief but informed her that the employing establishment believed
that all the donated leave had been used. Appellant presented no corroborating evidence to
support that the employing establishment erred in this matter.
Appellant alleged that in March or April 2011 Mr. Wolak informed her that she could not
take notes during an unscheduled staff meeting while others were taking notes. She indicated
that on May 27, 2011 Ms. Stokes announced that staff could leave 59 minutes early due to the
Memorial Day holiday and when appellant attempted to confirm that she was permitted to depart
early Mr. Wolak spoke to her sharply stating “Of course! Why wouldn’t it!” Similarly, on
June 14, 2011 appellant attempted to take a lunch break and inquired of Mr. Wolak as to who
would cover the desk and he replied “What are you going to do about it!” The Board has found
that an employee’s complaints concerning the manner in which a supervisor performs his duties
as a supervisor or the manner in which a supervisor exercises his supervisory discretion fall, as a
rule, outside the scope of coverage provided by FECA. This principle recognizes that a
13

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

14

Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

15

See Judy Kahn, 53 ECAB 321 (2002).

6

supervisor or manager in general must be allowed to perform his duties, that employees will at
times dislike the actions taken, but that mere disagreement or dislike of a supervisory or
management action will not be actionable, absent evidence of error or abuse.16 The Board finds
that appellant has not offered specific evidence to establish error or abuse. She presented no
specific corroborating evidence, specific to date and time, to show that Mr. Wolak or the
employing establishment acted unreasonably in these matters.
Appellant asserted that on September 20, 2013 Ms. Link, a supervisor in another
department, requested permission to have appellant work overtime in her department and
Mr. Wolak would not permit it. The Board has held that denials by an employing establishment
of a request for a different job, promotion or transfer are not compensable factors of employment
as they do not involve the employee’s ability to perform her regular or specially assigned work
duties but rather constitute her desire to work in a different position.17 The employing
establishment has either denied these allegations or explained how it acted reasonably in these
administrative matters. The record indicates that Mr. Wolak explained that his department was
funded separately from Ms. Link’s department and he was unaware of how funds could be
transferred to fund the overtime. He also inquired if Ms. Link could hire appellant in a part-time
position so appellant could be paid by Ms. Link’s department. Appellant presented no
corroborating evidence to establish that Mr. Wolak erred or acted abusively with regard to these
allegations. She has not established administrative error or abuse in the performance of these
actions and therefore they are not compensable under FECA.
Appellant alleged that she worked in a hostile environment and was harassed. She noted
filing three EEO complaints against Mr. Wolak asserting that he retaliated and discriminated
against her. To the extent that incidents alleged as constituting harassment or a hostile
environment by a manager are established as occurring and arising from appellant’s performance
of her regular duties, these could constitute employment factors.18 However, for harassment to
give rise to a compensable disability under FECA, there must be evidence that harassment did in
fact occur. Mere perceptions of harassment are not compensable under FECA.19
The factual evidence fails to support appellant’s claim for harassment as a cause for her
emotional condition. In the hearing transcript dated April 4, 2013, Mr. McNair recalled an
incident where Mr. Wolak got upset when appellant informed him of a time card issue and when
appellant asked a question about the chain of command. However, Mr. McNair was not sure if
Mr. Wolak was directing his anger at appellant or the whole group and he could not say that the
situation was hostile. Mr. McNair noted that he never heard Mr. Wolak make derogatory
statements based on race. He indicated that he could not address whether appellant had a
threatening or tense relationship with Mr. Wolak. Other witness statements are also not specific
16

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

17

Donald W. Bottles, 40 ECAB 349, 353 (1988). See Robert Breeden, 57 ECAB 622 (2006) (an employee’s
dissatisfaction with being transferred constitutes frustration from not being permitted to work in a particular
environment or to hold a particular position and is not compensable).
18

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

19

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

7

as to the time or place of any claimed harassing incidents or lack sufficient context to establish
disparate treatment. The Board notes that there is insufficient evidence corroborating appellant’s
charges that Mr. Wolak harassed her. Thus, appellant has not established a compensable
employment factor under FECA with respect to the claimed harassment.
To the extent that appellant alleged that Mr. Wolak threatened, yelled and verbally
abused her, the Board has recognized the compensability of verbal abuse and threats in certain
circumstances. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under FECA.20 The Board finds that the facts of this case do not support
any specific incidents of verbal abuse. Appellant claimed that in October 2007 Mr. Wolak yelled
at her regarding an e-mail he instructed her to send but there is no evidence confirming that a
specific incident occurred at a particular time and place. Appellant submitted a witness
statement from Ms. Culley who claimed that on February 8, 2013 she witnessed a man approach
appellant’s desk and pointed his finger at her in a threatening manner. However, Ms. Culley did
not identify the individual speaking to appellant. Similarly, Ms. Brandon noted several incidents
in which Mr. Wolak yelled at appellant and made negative comments but she could not recall the
content of the statements or when they occurred. Ms. Brandon further noted that she also
observed appellant yelling at coworkers, including Ms. Stokes. She indicated that there was a lot
of yelling in the workplace.21 Appellant alleged that Mr. Wolak stated to a male coworker that
he should never get a wife like appellant. Mr. McNair noted that Mr. Wolak made a comment
stating “something about I wouldn’t marry her or something like that” but he indicated that he
did not know the specifics of how it was stated or when the exchange took place. The Board
finds that the facts of the case do not support any specific incidents of verbal abuse or threats.
Appellant provided no corroborating evidence, or witness statements to establish her allegations
at a particular time and place.22 There is no corroborating evidence to support that any verbal
interaction with appellant by Mr. Wolak rises to the level of a compensable employment factor.23
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.24 She 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.
On appeal, appellant reiterates her allegations, asserting that she has established error or
abuse on the part of the employing establishment. As explained, the Board finds that she has not

20

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

21

See Joe M. Hagewood, 56 ECAB 479 (2005) (without a detailed description of the specific statements made, a
compensable employment factor was not established; the mere fact a supervisor or employee may raise his voice
during the course of a conversation does not warrant a finding of verbal abuse).
22

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
23

See Judy L. Kahn, supra note 15.

24

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

8

established her claim for an emotional condition as she has not factually established any
compensable employment factors.
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2014 decision of Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


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

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

Docket No. 12-215
Issued: May 23, 2012

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 9, 2011 appellant filed a timely appeal from the June 28, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her oral
hearing request.1 As more than 180 days elapsed from the issuance of OWCP’s May 5, 2011
decision denying modification of its wage-earning capacity determination to the filing of this
appeal on November 9, 2011, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review only the nonmerit
decision denying a hearing.
ISSUE
The issue is whether OWCP properly denied appellant’s June 8, 2011 oral hearing
request.

1

See 5 U.S.C. § 501.3(f)(1) (if using the date of receipt would result in a loss of appeal rights, the appeal is
considered to be filed as of the date of the postmark). Here, the date of receipt, November 9, 2011, does not result in
a loss of appeal rights, as the date of the postmark, November 4, 2011, also renders the appeal untimely from the
May 5, 2011 OWCP decision.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 20, 2000 appellant, a 44-year-old clerk, filed an occupational disease claim
alleging that her bilateral plantar fasciitis, tendinitis and heel spurs were a result of the duties of
her position. OWCP accepted her claim for an aggravation of bilateral plantar fasciitis and
bilateral tarsal tunnel syndrome.
In a September 4, 2009 decision, OWCP reduced appellant’s wage-loss compensation to
zero on the grounds that her actual earnings in a modified clerk position effective November 8,
2007 fairly and reasonably represented her wage-earning capacity.
On May 5, 2011 OWCP denied modification of its wage-earning capacity determination.
Attached appeal rights notified appellant that any hearing request must be made within 30calendar days after the date of the decision, as determined by the postmark of the request.
In a letter postmarked June 8, 2011, appellant requested an oral hearing before an OWCP
hearing representative.
On June 28, 2011 OWCP’s Branch of Hearings and Review denied appellant’s hearing
request. Because the request was untimely, OWCP found that appellant was not entitled to a
hearing as a matter of right. It nonetheless considered the request but denied a discretionary
hearing on the grounds that appellant could equally well pursue the issue in her case by
requesting reconsideration.
On appeal, appellant argues the merits of OWCP’s wage-earning capacity determination,
which the Board has no jurisdiction to review.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on [her] claim before a representative of the Secretary.”3
The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.4 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.5 In such a
case, OWCP will determine whether a discretionary hearing should be granted or, if not, will so
advise the claimant with reasons.6

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.616(a).

5

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

6

Rudolph Bermann, 26 ECAB 354 (1975).

2

ANALYSIS
Appellant made her June 8, 2011 oral hearing request more than 30 days after OWCP’s
May 5, 2011 decision denying modification of its wage-earning capacity determination. As it
was untimely, she is not entitled to a hearing as a matter of right. OWCP nonetheless considered
the request and correctly advised appellant that she could address the issue through the
reconsideration process.
As appellant could have addressed the issue by requesting
reconsideration, the Board finds that OWCP properly exercised its discretion in denying an oral
hearing in the matter.7
CONCLUSION
The Board finds that OWCP properly denied appellant’s June 8, 2011 oral hearing
request.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2012
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

7

The Board has held that the denial of a hearing on these grounds is a proper exercise of OWCP discretion. E.g.,
Jeff Micono, 39 ECAB 617 (1988). The Board notes that there is no time limitation for requesting modification of an
existing wage-earning capacity determination.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 14-1911
Issued: February 3, 2015

Case Submitted on the Record

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

JURISDICTION
On August 29, 2014 appellant filed a timely appeal of a June 16, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
from the issuance of the most recent merit decision of December 11, 2013, to the filing of this
appeal and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant submitted an updated magnetic resonance imaging (MRI) scan of
the lumbar spine.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the June 16, 2014 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 5, 2013 appellant, then a 50-year-old distribution window clerk, filed an
occupational disease claim (Form CA-2) alleging aggravation of preexisting neck and back
conditions due to factors of her federal employment, including constant lifting.
In reports dated January 31 through April 11, 2013 Dr. Mohammad Rana, a Boardcertified neurologist, diagnosed moderate multilevel degenerative disc disease of the neck and
spine and indicated that appellant’s pain symptoms got worse at work while lifting and pushing.
On October 19, 2012 Dr. Manish Rai, a Board-certified internist, diagnosed low back
pain without radiculopathy and lumbosacral disc degeneration.
In an October 10, 2013 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a January 30, 2011 MRI scan of the cervical spine which revealed
moderate multilevel degenerative disc change.
In a November 10, 2011 report, Dr. Brian Block, a Board-certified anesthesiologist and
pain medicine specialist, diagnosed low back pain, leg pain, and neck pain. He opined that
appellant’s cervical pain was “likely from her degenerated discs” and her back pain “could also
be from degenerated or herniated discs.” Dr. Block further indicated that her adhesive capsulitis
was “likely because she ha[d] not moved her arm enough due to the neck pain.”
On October 30, 2013 Dr. Rana indicated that appellant had been under his care since
2009 and had chronic neck, shoulder, and arm pain since December 22, 2010. He reiterated that
appellant had been diagnosed with cervical spine degenerative disc disease on x-rays, later
confirmed on MRI scans, and that her symptoms got worse over a period of time due to lifting,
pulling, and pushing heavy boxes at work. He opined that these work-related exertions on her
spine made her pain symptoms so bad that she had to miss work.
By decision dated December 11, 2013, OWCP denied the claim on the basis that
appellant failed to submit sufficient evidence to establish that a diagnosed medical condition was
causally related to factors of her federal employment.
On April 1, 2014 appellant requested reconsideration and submitted a disc containing
multiple images from an MRI scan of the lumbar spine dated September 26, 2013 and a
questionnaire completed by appellant prior to the study.
By decision dated June 16, 2014, OWCP denied appellant’s request for reconsideration of
the merits finding that she did not submit pertinent new and relevant evidence and did not show
that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
On appeal appellant submitted an updated MRI scan of the lumbar spine and a completed
medical questionnaire.

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9
ANALYSIS
In support of her April 1, 2014 reconsideration request, appellant submitted a disc
containing multiple images from a September 26, 2013 MRI scan of the lumbar spine and a
questionnaire completed by appellant prior to the study. The Board finds that submission of
these documents did not require reopening appellant’s case for merit review as they do not
contain rationale by a physician relating a diagnosed medical condition to factors of her federal
employment, which was the issue before OWCP.10 Therefore, these documents do not constitute

3

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

10

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

3

relevant and pertinent new evidence and are not sufficient to require OWCP to reopen the claim
for further consideration of the merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did she submit any relevant and pertinent new evidence not
previously considered. On appeal, appellant submitted an updated MRI scan of the lumbar
spine. The Board, however, is precluded from reviewing evidence which was not before OWCP
at the time it issued its final decision.11 Thus, the Board finds that appellant did not meet any of
the necessary requirements and is not entitled to further merit review.12
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

See supra note 2.

12

See L.H., 59 ECAB 253 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.E., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Ocean Springs, MS, Employer
__________________________________________

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

Docket No. 08-1330
Issued: November 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 2, 2008 appellant filed a timely appeal from August 17, 2007 and January 14,
2008 decisions of the Office of Workers’ Compensation Programs, denying his claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that his emotional
condition was causally related to a compensable employment factor.
FACTUAL HISTORY
On June 13, 2007 appellant, then a 44-year-old housing adviser specialist, filed an
occupational disease claim alleging that he sustained elevated blood pressure and anxiety due to
work-related stress.1 The employing establishment controverted his claim. Appellant alleged
1

Appellant assisted applicants seeking assistance under a federal disaster housing program.

that supervisors, Felicia Reynolds and Lawanda Rogers, attempted to turn Johnathan Navas, a
coworker, against him and reassigned part of his workload to Mr. Navas. Ms. Rogers removed
items from appellant’s desk. Management refused to allow appellant to review his employee
folder. Supervisors subjected him to excessive scrutiny, including following him when he
traveled to housing applicants’ locations. Appellant was reprimanded when a case was
improperly removed from his desk by a coworker. In May 2007 his team leader told him that
some files he was working on were unacceptable. Appellant alleged that he applied for new
positions but was not selected. Management and coworkers harassed and discriminated against
him. Appellant filed an Equal Employment Opportunity (EEO) complaint in May 2007.2
On June 29, 2007 the Office requested additional information, including a detailed
description of the work situations or incidents that contributed to appellant’s emotional condition
and a comprehensive medical report explaining how these employment factors caused or
aggravated his medical conditions.
In a July 10, 2007 statement, Laura Skipper, a coworker, noted that appellant was the
target of unwarranted scrutiny and harassment at work by coworkers at the direction of
management. Coworkers contacted employing establishment clients and asked them what
appellant told them. In a July 11, 2007 statement, AnJanece Crain, a coworker, stated that
appellant was discriminated against and harassed at work, as were other African-Americans.
Ms. Skipper and Ms. Crain did not provide details of specific incidents of harassment and
discrimination such as dates, individuals involved or what occurred.
Appellant submitted medical evidence in support of his claim. In a disability certificate
dated June 13, 2007, Dr. Mary Rosenquist, an osteopath and family practitioner, indicated that
appellant was disabled from work from June 13 to 20, 2007 due to elevated blood pressure and
anxiety. In a September 18, 2007 report, she stated that anxiety and depression, caused by
overwhelming stress at work, led to hypertension and insomnia. Dr. Rosenquist stated that
appellant’s federal employment contributed to his condition because of stress-related issues at
work.
By decision dated August 17, 2007, the Office denied appellant’s claim on the grounds
that he failed to establish that his emotional condition was causally related to a compensable
employment factor.
Appellant requested a review of the written record. By decision dated January 14, 2008,
an Office hearing representative affirmed the August 17, 2007 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned work duties or to a requirement imposed by the
2

There is no final EEO decision of record regarding the EEO complaint.

2

employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 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.4
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of the Act. However, where the evidence demonstrates that the employing establishment either
erred or acted abusively in the administration of personnel matters, coverage may be afforded.5
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship, and which are not deemed compensable
factors of employment and may not be considered.6 When a claimant fails to implicate a
compensable factor of employment, the Office should make a specific finding in that regard. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor.7 As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim but rather must be
corroborated by the evidence.8 Where the claimant alleges compensable factors of employment,
he must substantiate such allegations with probative and reliable evidence.9 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, then the Office must base its decision on an analysis of the medical
evidence.10
ANALYSIS
Several of appellant’s allegations are not established as having occurred. He alleged that
Ms. Reynolds and Ms. Rogers attempted to turn Mr. Navas against him. Appellant alleged that
Ms. Rogers removed items from his desk. He alleged that management refused to allow him to
review his employee folder. There is insufficient evidence to support that these incidents
occurred, as alleged. Appellant failed to support these allegations with specific, substantive,

3

5 U.S.C. §§ 8101-8193.

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Michael Thomas Plante, 44 ECAB 510 (1993).

6

Dennis J. Balogh, 52 ECAB 232 (2001).

7

Margaret S. Krzycki, 43 ECAB 496 (1992).

8

See Charles E. McAndrews, 55 ECAB 711 (2004).

9

Joel Parker, Sr., 43 ECAB 220 (1991).

10

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

3

reliable and probative evidence. Therefore, these allegations do not constitute compensable
employment factors.
Appellant alleged that management reassigned part of his workload to another employee,
subjected him to excessive monitoring, reprimanded him when a case was improperly removed
from his desk, criticized some of his work and improperly denied his applications for new
positions. The assignment of work, monitoring employees, disciplining employees, evaluating
job performance and selecting employees for particular positions are administrative functions of
supervisors. The Board has held that an administrative or personnel matter will be considered to
be an employment factor only where the evidence discloses error or abuse on the part of the
employing establishment.11 In determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.12
Appellant did not provide specific information pertaining to his allegations such as dates,
individuals involved or what occurred. He failed to support these allegations with specific,
substantive, reliable and probative evidence. Therefore, appellant’s allegations regarding
administrative or personnel matters do not constitute compensable factors of employment.
Appellant alleged generally that management and coworkers harassed and discriminated
against him. Mere perceptions of harassment or discrimination are not compensable under the
Act. Appellant’s burden of proof is not discharged with allegations alone. He must support his
allegations with probative and reliable evidence.13 Appellant’s statements and the two
statements from coworkers provided insufficient details such as dates, individuals involved or
what occurred. Therefore, his allegations of harassment and discrimination do not constitute
compensable factors of employment.
Appellant filed an EEO complaint in May 2007. However, the mere filing of an EEO
complaint does not constitute a compensable factor of employment. The Board has held that
grievances and EEO complaints, by themselves, do not establish wrongdoing by an employing
establishment.14 There is no EEO decision or settlement agreement of record containing findings
of error or abuse by employing establishment personnel. Consequently, appellant’s EEO
materials are not sufficient to establish a compensable factor of his employment.
Appellant failed to establish that his emotional condition was causally related to a
compensable factor of employment. Therefore, the Office properly denied his emotional
condition claim.
CONCLUSION
The Board finds that appellant failed to establish that his emotional condition was
causally related to a compensable factor of employment.
11

Id.

12

Janice I. Moore, 53 ECAB 777 (2002).

13

Cyndia R. Harrill, 55 ECAB 522 (2004).

14

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

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 14, 2008 and August 17, 2007 are affirmed.
Issued: November 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 15-1241
Issued: January 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 12, 2015 appellant filed a timely appeal from an April 23, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.3

1

On February 23, 2015 OWCP issued a decision denying appellant’s claim for a schedule award. Appellant
requested reconsideration and on April 23, 2015 OWCP found that the evidence was not sufficient to warrant review
of the decision. By letter dated August 3, 2015, she requested that the appeal to the Board of the schedule award
decision be withdrawn. In an August 31, 2015 clarification letter, appellant indicated that she only wished to
withdraw her appeal of the schedule award decision.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its April 23, 2015 merit
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. See 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP abused its discretion by denying authorization for anterior
cervical discectomy and fusion at C6-7, which was performed on September 29, 2014.
FACTUAL HISTORY
This case has previously been before the Board.4 Briefly, the relevant facts are as
follows. On June 15, 2006 appellant, then a 53-year-old mail flow controller, filed an
occupational disease claim (Form CA-2) alleging that she aggravated her preexisting neck and
shoulder condition as a result of her federal duties. She noted that her work duties involved
looking up to view four to eight large computer monitors while simultaneously operating a
mouse and answering the telephone.
OWCP denied appellant’s claim on September 18, 2006. Appellant subsequently
requested reconsideration several times, and requested a hearing before the Branch of Hearings
and Review. OWCP continued to deny the claim. Following a December 4, 2009 decision,
again denying modification of the denial of the claim, appellant appealed to the Board. By
decision dated January 1, 2011, the Board remanded the case to OWCP, finding an unresolved
conflict in the medical evidence. The Board concluded that the case should be referred to an
impartial medical examiner.5 The facts as presented in the prior decision are incorporated herein
by reference.
After further development of the medical evidence on May 18, 2011 OWCP accepted
appellant’s claim for aggravation of preexisting cervical spondylosis.
The record reveals that on February 20, 2007 appellant underwent surgery, specifically
C4, C5, and C6 laminectomies, bilateral C7 laminotomy and forminotomy, C4 to C6
posterolateral fusion using local autograft, allograft and instrumentation and application of a
Mayfield head holder. The record does not confirm that this surgery was authorized by OWCP
as the case was in a “denied” status until May 2011. Appellant had been in receipt of Office of
Personnel Management disability retirement benefits since September 2008, but elected to return
to FECA benefits as of April 1, 2013. She was then placed on the periodic rolls on May 5, 2013.
On October 29, 2013 appellant was evaluated by Dr. David Oliver-Smith, a Board
certified neurosurgeon, at the request of Dr. Derek J. Thomas, appellant’s treating Boardcertified orthopedic surgeon. Dr. Oliver-Smith related appellant’s history of injury, and her
complaints of neck pain. He then related that appellant’s neurologic examination, as
documented in her chart, was within normal limits. Dr. Oliver-Smith explained that appellant’s
cervical magnetic resonance imaging (MRI) scan from June 28, 2013 was reviewed and showed
postoperative changes consisting of laminectomy at C4-6 with instrumentation artifact. The
MRI scan, however, did not show significant spinal cord or nerve root impingement. Dr. OliverSmith noted that appellant complained of chronic neck and right arm pain after surgery. There
4

Docket No. 10-1019 (issued January 11, 2011).

5

Id.

2

was no evidence of spinal cord or nerve root impingement that would require surgical
intervention. Dr. Oliver-Smith expressed doubt that further surgery would be helpful for her
pain.
In a May 8, 2014 report, Dr. Thomas diagnosed cervical stenosis, and a facet cyst of the
right side. He noted pain paraspinal muscles of the neck in the right upper extremity at about a
C6-7 nerve distribution. Dr. Thomas also noted that appellant had an electromyogram (EMG)
study consistent with C5-6 problems that were likely chronic. He noted that he had a long
discussion with appellant about the risks and benefits of performing an anterior cervical
discectomy and fusion at C6-7. Dr. Thomas noted that this would fuse the level and stop the
cyst, or if it were an arthritic cyst, perhaps reduce it. In a June 26, 2014 report, he told appellant
that a C6-7 cervical disc fusion might provide some relief, but there were no guarantees.
Dr. Thomas noted that she wished to discuss this with her family.
By letter dated July 22, 2014, appellant requested authorization for a second cervical
surgery.
On July 29, 2014 OWCP referred the case to an OWCP medical adviser to provide an
opinion with regard to the proposed cervical neck revision surgery. OWCP’s medical adviser,
Dr. Arnold T. Berman, Board-certified in orthopedic surgery, responded on August 18, 2014
that, although it is agreed that appellant had ongoing progressive degenerative disease, there was
“no evidence of any acute injury due to the condition, and any proposed surgery should be
considered to be nonwork related.”
On August 28, 2014 Dr. Thomas noted that appellant previously underwent a two-level
posterior laminectomy and fusion with screws at C4-5, C5-6. He noted that appellant had now
developed an adjacent level problem at C6-7 with foraminal stenosis especially on the right side.
Dr. Thomas noted that this was common and typical continuation of her prior problem and that
he believed it should still be considered part of her employment-related injury. He related that
an MRI scan showed cervical stenosis and foraminal stenosis, with facet cyst. Dr. Thomas noted
that appellant had been through multiple nonoperative treatments including injections,
medications, and therapeutic exercise, and that at this point, surgical intervention would be the
next logical step.
On September 17, 2014 OWCP referred the updated report, along with the case record to
a new OWCP medical adviser. It noted that appellant had undergone a prior authorized surgery
of her cervical spine in 2007, and asked for his opinion whether the requested cervical surgery
should be authorized.6 In response, an OWCP medical adviser, Dr. Morley Slutsky, Boardcertified in occupational medicine, noted that there was limited objective evidence to support that
the pain was coming from a specific cervical level, that there were progressive neurologic
defects related to this level, or that there was spinal instability at this level. He noted that the
objective evidence therefore did not support that fusion surgery at C6-7 level would in any way

6

The Board notes that while the referral letter indicated that the prior 2007 cervical surgery was authorized, this
appears to be a typographic error as the statements of accepted facts of record do not indicate that the surgery was
authorized.

3

improve claimant’s symptoms. Dr. Slutsky recommended a second opinion examination as to
whether surgery was warranted.
On September 29, 2014 Dr. Thomas performed an anterior cervical discectomy and
fusion at C6-7.
OWCP referred appellant’s file to Dr. Paul E. Di Cesare, a Board-certified orthopedic
surgeon, to provide an opinion as to whether the anterior discectomy and fusion at C6-7 on
September 29, 2014 was related to the accepted conditions. In a November 19, 2014 report,
Dr. Di Cesare concluded that the anterior discectomy and fusion at C6-7 of September 29, 2014
was not medically necessary and the association between the current surgery and the previous
surgery was unclear. He determined that certain criteria needed to be met prior to determining
whether surgery would be indicated. Although Dr. Di Cesare found that appellant met some of
the criteria, appellant did not exhibit weakness and the C6-7 cyst was present previously.
Accordingly, he found that the anterior discectomy and fusion would not have been medically
necessary. Dr. Di Cesare noted that literature was not clear that adjacent-segment pathology
would be directly related to the prior fusion surgery or due to the natural history of spondylosis
at the adjacent segment.
On December 2, 2014 OWCP denied authorization for the neck spine fusion and removal
of insert spine fixation device.
By letter dated January 7, 2015, OWCP requested from appellant an updated medical
report to confirm his continued disability. On January 25, 2015 appellant requested
reconsideration.
In a March 3, 2015 report, Dr. Thomas related that he had performed surgery in
September 2014 which improved the arm pain, but appellant continued to exhibit neck pain. He
noted that she had no restrictions at this point, but her motion was going to be significantly
restricted as she now had three levels in her neck fused.
By decision dated April 23, 2015, OWCP declined to modify its prior decision as the
requested surgery was not medically necessary or related to the accepted condition.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.7
While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.8
7

5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

8

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

4

In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on
OWCP’s authority being that of reasonableness.9 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 deductions from established facts. It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.10 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.11 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.12
ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying authorization of the
anterior cervical discectomy and C6-7 fusion which was performed on September 29, 2014.
On October 29, 2013 appellant was referred by her treating physician to Dr. OliverSmith, due to her continuing pain complaints relating to her neck and upper extremities.
Dr. Oliver-Smith explained that appellant’s June 28, 2013 MRI scan did not show significant
spinal cord or nerve root impingement that would require surgical intervention. He therefore
expressed doubt that further cervical surgery would be helpful.
Dr. Thomas, appellant’s treating Board-certified orthopedic surgeon, noted that on
May 8, 2014 he had a long discussion with appellant about the risks and benefits of doing an
anterior cervical discectomy and fusion at C6-7. He noted on June 26, 2014 that he told
appellant that he thought the proposed surgery would give her some relief, but that there were no
guarantees. On August 28, 2014 Dr. Thomas noted that appellant had a two-level posterior
laminectomy and fusion done previously at levels C4-5 and C5-6, and that appellant had now
developed an adjacent level problem at C6-7 with foraminal stenosis especially on the right side.
He noted that this was a common continuation of her prior problem and that he believed it should
still be considered part of her employment-related injury. Dr. Thomas noted that as appellant
had not had lasting success with nonoperative treatments, that surgical intervention would be the
next logical step.
Dr. Thomas performed the anterior cervical discectomy and fusion at C6-7 on
September 29, 2014 without obtaining prior approval from OWCP.
9

See D.K., 59 ECAB 141 (2007).

10

Minnie B. Lewis, 53 ECAB 606 (2002).

11

M.B., 58 ECAB 588 (2007).

12

R.C., 58 ECAB 238 (2006).

5

The Board notes that the record was reviewed by two OWCP medical advisers,
Dr. Berman on August 18, 2014 and Dr. Slutsky on September 17, 2014. Both found the
requested surgery nonwork related as there was no objective evidence to support that further
fusion would improve appellant’s symptoms.
Dr. Di Cesare, the second opinion physician, also disagreed with the need for the surgery.
He specifically opined that the anterior discectomy and fusion at C6-7 on September 29, 2014
was not medically necessary and that the association between the surgery and the prior surgery
was not clear. Dr. Di Cesare reviewed criteria established for evaluating the need for cervical
surgery and found that appellant’s symptoms, specifically the lack of weakness and a preexisting
cyst, warranted against surgery. He found the literature unclear whether adjacent-segment
pathology would be directly related to prior fusion surgery or the natural progression of
spondylosis. The Board finds that Dr. Di Cesare’s opinion is based upon a complete history and
objective diagnostic findings and is entitled to the weight of the medical evidence.
The Board finds that Dr. Thomas has not provided a rationalized medical explanation that
appellant’s August 28, 2014 surgery was medically necessary due to the accepted injury.
Dr. Thomas indicated that in his discussion with appellant he had advised that the proposed
surgery could possibly provide some relief, and that surgery was the next step in treatment, but
he did not explain, however, that the surgery was in fact medically necessary by discussing
which treatments had failed and why no other nonsurgical treatment options would be open to
him.13 Further, Dr. Oliver-Smith was not of the opinion that the surgery was indicated.
While Dr. Thomas argued that the current adjacent level problem should now be
considered a part of her employment-related injury, he failed to offer sufficient medical rationale
to support his opinion. His reports were equivocal and not based on specific diagnostic tests or
clinical findings. The Board has held that medical opinions that are speculative or equivocal in
nature are of diminished probative value. Dr. Thomas also offered no discussion regarding the
June 28, 2013 MRI scan evaluation, which Dr. Oliver-Smith found did not evidence spinal cord
or nerve root impingement requiring further surgical treatment.
The Board notes that the record does not confirm that appellant’s prior surgery in 2007
had been authorized by OWCP. As Dr. Thomas recommended the second surgery, in part as a
continuation of the first surgery, it is especially important that he provide a rationalized medical
opinion as to how any surgery would have been medically necessary due to the accepted injury.
For these reasons, the Board concludes that OWCP properly denied appellant’s request for the
September 29, 2014 cervical surgery as it was found not to be medically necessary due to the
accepted injury.
The only limitation on OWCP’s authority in approving, or disapproving, services under
FECA is that of reasonableness.14 The Board finds that OWCP did not abuse its discretion.

13

See J.M., Docket No. 13-1089 (issued November 5, 2013).

14

See Daniel J. Perea, 42 ECAB 214, 221 (1990).

6

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 OWCP did not abuse its discretion in denying authorization of
appellant’s September 29, 2014 anterior cervical discectomy and fusion at C6-7.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 23, 2015 is affirmed.
Issued: January 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7