United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR NATIONAL GUARD, WISCONSIN
NATIONAL GUARD, Madison, WI, Employer
__________________________________________

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

Docket No. 09-390
Issued: November 16, 2009

Case Submitted on the Record

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

JURISDICTION
On November 24, 2008 appellant filed a timely appeal from the May 15 and October 6,
2008 merit decisions of the Office of Workers’ Compensation Programs denying her emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
This is the third appeal in this case. On June 21, 2007 the Board found that appellant
filed a timely reconsideration request and that the Office erred in finding that it was untimely.1
1

Docket No. 07-528 (issued June 21, 2007).

On May 8, 2008 the Board set aside the Office’s August 8, 2007 decision and found that
appellant submitted evidence on reconsideration that warranted a merit review of her claim.2
The facts and the circumstances of the case as set forth in the Board’s prior decisions are
incorporated herein by reference.
In support of her emotional condition claim, on March 22, 2005 appellant stated that she
was interviewed in November and December 13, 2001 during an investigation of her work unit.
She was unaware of how the investigating officer obtained her name or why he wanted to
question her. On January 11 and March 6, 2002 appellant was interviewed by two investigators
about a security incident. She did not understand why the second interview was needed. On
February 28, 2002 appellant’s cryptographic access was suspended. She stated that her third line
supervisor, Col. Cheryl Prisland, told her the suspension was not for cause. Appellant noted that
this occurred one week after she spoke with an Equal Employment Opportunity (EEO) officer
about a hostile work environment. She was relocated to medical squadron that was in another
workgroup and building. In April 2002, appellant’s commander, Lt. Col. David McLean,
ordered her to active duty and gave her a letter of counseling. Appellant stated that she had
never been ordered to active duty without prior knowledge and had never received a letter of
counseling. In May 2002, her cryptographic access was returned. Appellant noted that her third
line supervisor, Col. Thomas Hinman, told her that she would remain in the medical squadron for
90 days, but gave no reason; however, he mentioned her grievance for a hostile work
environment.
In January 2003 appellant advised that she needed records to prepare for a performance
appraisal appeal hearing; however, Lt. Col. McLean refused to give her the records. In
April 2003 she underwent a security clearance interview which she alleged lasted seven and onehalf hours while her previous interview, five years prior, lasted one and one-half hours.
Appellant alleged that her coworkers and supervisors made unsubstantiated allegations that she
had violated security or was mentally ill. After the interview, she was exhausted but had to work
12-hour days for the next seven days. In June 2003 appellant underwent another security
clearance interview where she was questioned about a security incident.
In June 2003 appellant attended a reintegration meeting with coworkers from her unit at
which coworker MSgt. Engelke attacked her character. She was advised to get counseling to
deal with her return to the workgroup. In October 2004 appellant returned to her former
workgroup location.3 She stated that the Air Force Central Adjudication Facility (AFCAF)
reinstated her top secret clearance but CMSgt Dwight Evans, her supervisor, compiled
documents and letters from coworkers and sent them to AFCAF to suspend her security
clearance. In November 2004 management offered to transfer appellant to a lower graded supply
position. She stated that Col. Hinman told her that her commander did not intend on
recommending her for selective retention (military) or allow her to extend her military enlistment
2

Docket No. 08-277 (issued May 8, 2008).

3

In return for appellant dropping a March 20, 2002 grievance for harassment, a May 21, 2003 settlement
agreement noted that the employing establishment would investigate harassment claims and enforce a zero tolerance
policy. The agreement provided that all documents on harassment in appellant’s files would be expunged and she
would return to her workgroup upon her getting proper clearance and credentials.

2

beyond her term of service. Appellant noted that loss of military membership would mean the
loss of her job. She did not work from January 8 through February 14, 2005. Appellant received
a January 2005 letter from CMSgt Evans asking that she report to work or provide medical
documentation. In January 2005 her security clearance was suspended and she was transferred
to a supply technician job. Appellant alleged the process was improper as her commander had
early knowledge of her suspension. In February 2005 appellant received information from
AFCAF about her suspension. She stated that CMSgt Evans and TSgt Lisa Hay wrote
disparaging things about her.
Appellant returned to work on February 14, 2005. In attempting to retrieve personal
folders from her computer, she discovered someone had apparently tampered with them.
Appellant copied her attorney on an e-mail about the matter. Lt. Col. McLean initiated a security
information file on February 22, 2005. He issued a military reprimand on March 6, 2005 and a
civilian reprimand on March 9, 2005 because he considered the e-mail copied to her attorney to
be “official business.” Appellant alleged that Lt. Col. McLean’s actions were unfair. She
asserted that, in March 2005, CMSgt Evans, gave her a note stating that she was not to have
contact with any members of her unit or allowed to do any of her training responsibilities.
Appellant attributed her stress to grieving unsubstantiated allegations, meetings and
character assassination by management and coworkers. She alleged her coworkers ostracized
her from October 2001 to September 2004 and that she received harassing notes from
September 2001 through March 2002. Appellant felt threatened by MSgt Engelke and filed a
grievance. She alleged that they had a blow-up on September 18, 2001 and a confrontation in
December 2001. Appellant alleged that MSgt Engelke attacked her character during a June 2003
meeting. She alleged that personal attacks occurred during a March 2002 relocation to the
medical squadron by Major Levenick; her 2002 security investigation testimony; an August 2002
state information manager’s meeting when Lt. Col McLean tried to issue a complaint against her;
and her April 2003 security clearance investigation. Appellant alleged that, in October 2004,
TSgt Hay undermined her authority with her functional area records managers. She alleged that
she was assigned an unequal distribution of work, intensive labor assignments, and time
consuming tasks from September 2001 through February 2002 and June 2004 through
January 2005. These included June 2000 and June 2004 performance standards, August 2004
help desk tickets, and a December 2004 calendar project. From March 2002 to May 2003
appellant had grievance meetings and alleged that Lt. Col. McLean interrogated her about her
work performance during a May 2002 meeting. She noted a May 2003 meeting with
Col. Hinman and CMSgt Evans where a coworker and functional area records manager disagreed
with information she gave to CMSgt Evans. Appellant also noted a March 2005 meeting with
Lt. Col. McLean about selective retention. She further alleged several e-mails from management
upset her.4
Appellant became upset with her performance appraisals. She stated that her
September 2002 performance appraisal was late and her supervisor dropped her rating 22 points
4

These included: an October 2004 e-mail from CMSgt Evans; February 2005 e-mails from Lt. Col. McLean
regarding her status when she was not at work from January 8 through February 14, 2005; a March 2005 e-mail
from CMSgt Evans which advised “you are not to have contact with coworkers.”

3

from the previous 51.5 points. Appellant’s September 2003 performance appraisal was late but
her supervisor raised her rating to 69 points. This occurred after she appealed a January 2003
appraisal and a May 2003 grievance settlement. Appellant’s June 2004 performance appraisal
was on time but had 16 pages of rewritten standards. She provided her supervisor written input
about the standards that she felt were unreasonable. Appellant did not sign her standards as her
supervisor did not change them or answer her questions. In December 2004 she requested to
meet with her supervisor mid-way through the rating period for a progress report and to
renegotiate the standards. Appellant stated that they did not meet as she was ordered to leave the
unit and building.
Appellant submitted copies of her performance standards and appraisals; e-mail and letter
correspondence from management and coworkers; cryptographic and security clearance
documents; a May 21, 2003 settlement agreement of a March 2002 grievance claiming
harassment, which advised the matter was closed; various complaints and grievances filed and
medical records.
On April 19, 2005 the employing establishment legal counsel, Randi Milsap, disputed
appellant’s allegations. Ms. Milsap provided a review of events from June 2000 to the
January 2005 suspension of appellant’s security clearance. She noted that appellant filed an
informal discrimination complaint on June 8, 2000 against her second-line supervisor, Lt. Col.
McLean, and that a series of meetings were held to address her concerns. On July 3, 2001
appellant agreed that all matters were resolved. Two formal investigations were conducted from
November 2001 to March 2002 concerning allegations of unprofessional relationships and
fraternization within appellant’s work group and a potential security breach. Appellant was a
source of information relevant to the allegations of unprofessional relationships and
fraternization. On February 27, 2002 appellant was temporary relocated to the medical squadron
due to the impending outcome of the investigation to ensure no retaliation or reprisal would
occur against her due to her testimony against Lt. Col. McLean. An adverse action was taken
against Lt. Col. McLean as a result of the investigation. Ms. Milsap indicated that on
February 28, 2002 appellant’s access to classified cryptographic information was
administratively withdrawn by her first-line supervisor based on his belief of a potential security
breach. A periodic investigation of appellant’s top secret security clearance was due in
March 2002, during which appellant was informed that she would remain with the medical
squadron until her clearance was validated, which was a requirement of her job. Ms. Milsap
noted that the Federal Labor Relations Authority (FLRA) investigated the charge that the Labor
Management Agreement had been violated when appellant was relocated and, on June 18, 2002,
dismissed the charge and found no discrimination or retaliation. She noted that appellant filed
grievances for intimidation, coercion and harassment but the grievances were eventually
dropped.
Ms. Milsap noted that appellant had appealed her “marginal” ratings on her civilian
technician performance appraisals for the period June 1, 2001 through May 31, 2002; however,
on January 29, 2003 an Ad Hoc Review and Appeals Board sustained appellant’s performance
appraisal without change. Management was directed to establish new performance standards.
Appellant, however, refused to acknowledge the new standards. Ms. Milsap noted that appellant
filed a second grievance for intimidation, coercion and harassment. During settlement
negotiations for the first grievance, the parties agreed the second grievance would be held in

4

abeyance and that upon validation of her security clearance appellant would be returned to her
work area. Appellant’s access to cryptographic information was returned in May 2002, her top
secret clearance was validated in September 2004, and she returned to her work area in
October 2004. In November 2004 Col. Hinman offered appellant another job that appellant
declined. In January 2005 appellant’s security clearance was suspended and she was relocated to
another work site.
In a July 14, 2005 decision, the Office denied the claim finding that no compensable
work factors were established. In an August 1, 2005 letter, appellant requested reconsideration.
No additional evidence was submitted. On September 1, 2005 the Office denied appellant’s
reconsideration request.
On July 13, 2006 appellant requested reconsideration. She asserted the employing
establishment did not safeguard her workers’ compensation claim information and that anyone in
her office had access to her file. Appellant alleged that the employing establishment used a
disingenuous tactics identify her as a security risk, which resulted in her security clearance being
revoked. She submitted reports from Dr. Marshall Fields, a Board-certified family practitioner,
dated January 11 and 21, 2005.5
Appellant also submitted an April 19, 2006 arbitration decision which found that the
employing establishment violated the labor/management agreement when it issued a March 9,
2005 letter of reprimand for sending e-mail to unauthorized accounts. The arbitrator, however,
specifically found that the employing establishment did not violate appellant’s right to counsel
when it issued the March 9, 2005 letter of reprimand. The arbitrator advised the letter would be
expunged from appellant’s file and replaced with a memorandum stating verbal counseling was
given on March 9, 2005. The arbitrator also found that appellant’s other allegations of
harassment and retaliation by her supervisors did not violate the labor/management agreement.
These included the rewritten performance standards, appellant’s relocation to the medical
squadron in 2002, failure to provide requested documents in response to a Freedom of
Information Act request, and the circumstances surrounding the loss of appellant’s security
clearance.
In a May 15, 2008 decision, the Office denied modification of the July 14, 2005 decision.
On July 20, 2008 appellant requested reconsideration. She reiterated her allegations,
stating that she prevailed in having the revocation overturned. Appellant retired from her civil
service position in February 2006. She submitted part of a recommended decision from
Administrative Judge Philip S. Howe to overturn the revocation of her security clearance.6
Administrative Judge Howe found that there was a personality or personnel problem in the
workplace, not a security concern. He noted that, while there were several errors in the
commander’s October 7, 2004 memorandum that did not accurately reflect certain events, those
concerns were mitigated. Appellant also submitted materials previously of record.

5

Dr. Fields January 11, 2005 report was previously of record.

6

Only a portion of the decision was submitted and the portion of record bears no date of issuance.

5

In an October 6, 2008 decision, the Office denied modification of its previous decision.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that 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.7
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 illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to her regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of her work or
her fear and anxiety regarding her ability to carry out her work duties.8 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.10 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.11
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.12
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
7

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

8

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

9

Id.

10

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
11

See William H. Fortner, 49 ECAB 324 (1998).

12

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

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employee did, in fact, occur. 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.13 Mere perceptions and feelings of harassment or discrimination will not support an
award of compensation. The claimant must substantiate such allegations with probative and
reliable evidence.14 The primary reason for requiring factual evidence from the claimant in
support of her allegations of stress in the workplace is to establish a basis in fact for the
contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by the Office and the Board.15
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.16
ANALYSIS
Appellant attributed her emotional condition to administrative and personnel actions
taken by management. As noted, reactions to administrative and personnel matters are not
covered under the Act unless there is evidence of error or abuse on the part of the employing
establishment.17
Appellant alleged error during the official investigations that took place concerning her
unit and regarding a security incident. The record reflects the employing establishment
conducted investigations into allegations of unprofessional relationships and fraternization in
appellant’s work unit and of a potential security breach. Due to the impending outcome of the
investigation regarding appellant’s second-line supervisor Lt. Col. McLean, appellant was
13

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and
Ruthie M. Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to
determine whether or not the evidence established such allegations).
14

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
15

Paul Trotman-Hall, 45 ECAB 229 (1993) (Groom, M., concurring).

16

A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006); T.G., 58 ECAB ___ (Docket No. 06-1411,
issued November 28, 2006); C.S., 58 ECAB ___ (Docket No. 06-1583, issued November 6, 2006); D.L., supra
note 7.
17

See supra notes 8 and 9.

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relocated from her unit to the medical squadron on February 27, 2002. The employing
establishment explained the relocation was temporary and was to ensure no retaliation would
occur against appellant due to her testimony in the investigation. Investigations are generally
related to the performance of an administrative function of the employer and not to the
employee’s regular or specially assigned work duties; a compensable factor of employment does
not arise unless there is affirmative evidence that the employer erred or acted abusively.18 There
is no evidence to establish that the employing establishment erred or acted abusively in matters
relating to its investigations. The record reflects appellant was a source of information which
initiated the investigation of allegations of unprofessional relationships and fraternization in
appellant’s work unit. Appellant’s reaction to the interviews for each investigation is considered
self-generated and she has not established a compensable work factor.
On February 28, 2002 appellant’s access to cryptographic information was
administratively withdrawn and was not returned until May 2002. She remained in the medical
squadron until her security clearance was validated in September 2004. Appellant returned to
her prior job in October 2004, which closed a May 2003 settlement agreement. There is no
evidence to establish that the employing establishment committed error and abuse regarding
appellant’s cryptographic access or her relocation to the medical squadron until her security
clearance was validated. The record reflects that appellant must maintain a valid top secret
clearance as a requirement of her job. In its June 18, 2002 decision, the FLRA made a finding of
not discrimination or retaliation in this matter. There is also no evidence establishing that the
employing establishment acted abusively in withdrawing appellant’s access to cryptographic
information. The record reflects appellant’s periodic investigation of her security clearance was
due in March 2002. While appellant has alleged the security clearance interviews were long and
left her distraught and exhausted, there is no evidence nor has she alleged that such interviews
were conducted in an abusive manner. Additionally, she received a favorable adjudication and
renewal of her top secret clearance by the AFCAF and was allowed to return to her job.
Appellant’s reaction to the security interviews and the length of time she had to remain working
in the medical squadron must be considered self-generated as there is no evidence of error or
abuse. Her frustration and depression resulting from an involuntary transfer are not
compensable19 and results from frustration in not being permitted to work in a particular
environment or to hold a particular position.20 Appellant has not established error or abuse in
these investigatory matters and they are not compensable employment factors.
Appellant alleged that she was ordered to active duty in April 2002 and given a military
letter of counseling. She indicated that she had never received a counseling letter and was
terrified to work under Lt. Col. McLean. Appellant also indicated that she was upset during
several supervisor and commander meetings concerning her grievances, work performance and
selective retention as well as various e-mails from management. She further alleged that she had
an anxiety attack when she received a January 2005 letter from supervisor CMSgt Evans which
asked for medical information or report to work when she was out of work from January 8
18

Ernest S. Pierre, 51 ECAB 623 (2000).

19

Andrew J. Sheppard, 53 ECAB 170 (2001).

20

Paul L. Stewart, 54 ECAB 824 (2003).

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through February 14, 2005. Generally, complaints about the manner in which a supervisor
performs his or her duties or the manner in which a supervisor exercises his or her discretion fall,
as a rule, outside the scope of coverage provided by the Act. This principle recognizes that a
supervisor or manager must be allowed to perform his or her duties and employees will, at times,
dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial action
will not be compensable, absent evidence of error or abuse.21 Appellant has not submitted
sufficient evidence that management acted unreasonably in these matters. She has presented no
evidence that the order to active duty and the letter of counseling was not properly handled or
that the employing establishment acted unreasonably in these matters. Thus, these allegations do
not rise to a compensable factor.
Appellant alleged an anxiety attack when Col. Hinman offered a voluntary transfer to a
lower-grade position in November 2004. There is no evidence of record of any wrongdoing on
the part of management in offering appellant such position. Moreover, she declined the offer.
Although the handling of job transfers and the management of work assignments and schedules
are generally related to the employment, they are administrative functions of the employer and
not duties of the employee.22 Appellant has not established a compensable work factor in this
matter.
Appellant indicated that meetings she attended from September 2002 to December 2004
regarding performance appraisals were upsetting. While appellant attended a hearing on
January 9, 2003 pertaining to a performance appraisal, a review board upheld the performance
appraisal without change in its January 29, 2003 decision. Pursuant to that decision, the
employing establishment established a new set of performance standards. The Board has held
that reactions to assessments of performance are not covered by the Act unless error or abuse is
shown.23 In determining whether the employing establishment erred or acted abusively, the
Board has examined whether the employing establishment acted reasonably.24 While appellant
took issue with the length of the rewritten standards, she did not submit evidence establishing
that this was abusive. There is also no evidence before the Board that the employing
establishment acted unreasonably in appraising appellant’s performance or in issuing her new
performance standards. Appellant also indicated that she never had a mid-year review to discuss
the new standards but she did not show how this was erroneous or rose to the level of a
compensable work factor.
Appellant alleged from September 2001 through February 2002 and June 2004 through
January 2005, she was assigned an unequal distribution of work, intensive labor assignments and
time consuming tasks. To the extent that she is alleging she was overburdened in the
performance of her duties, she did not provide a detailed allegation or supporting evidence to
21

T.G., supra note 16. Furthermore, disciplinary actions are administrative functions of the employer and are not
are not compensable employment factors absent a showing of error or abuse by the employing establishment. C.T.,
60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009).
22

L.C., 58 ECAB ___ (Docket No. 06-1263, issued May 3, 2007).

23

Effie O. Morris, 44 ECAB 470 (1993).

24

See Richard Dube, 42 ECAB 916 (1991).

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establish such allegation has a factual basis.25 As with all allegations, overwork must be
established on a factual basis to be compensable.26 Thus, appellant has not established a
compensable employment factor.
Appellant also failed to substantiate her allegation that the employing establishment
failed to safeguard her workers’ compensation claim and anyone in her office had access to her
file. The Board notes that the development of any condition related to such matters would not
arise in the performance of duty as the processing of compensation claims bears no relation to
appellant’s day-to-day or specially assigned duties.27
Appellant indicated that someone in her unit had tampered with her personal folders from
her computer. She stated that she had copied her attorney in an e-mail regarding the matter and
was penalized by Lt. Col. McLean three times for the event as he considered the e-mail to her
attorney to be “official business.” The record reflects that appellant received a March 9, 2005
reprimand letter about sending e-mail to unauthorized accounts. Appellant alleged and the
April 19, 2006 arbitrator’s decision found that the March 9, 2005 reprimand violated the labor
management agreement. Reactions to disciplinary matters, such as a letter of reprimand also
pertain to actions taken in an administrative capacity and are not compensable unless it is
established that the employing establishment erred or acted abusively.28 As the arbitrator found
the March 9, 2005 letter of reprimand was in error as it violated the labor management
agreement, appellant has established a compensable work factor in this regard.
In January 2005 appellant’s security clearance was suspended by the AFCAF and
appellant was relocated to another worksite. The record supports that appellant was required to
maintain a top secret security clearance as part of her job and the employing establishment
relocated appellant to another position that did not require a security clearance. Appellant
alleged that the revocation was in error. A partial undated recommended decision by
Administrative Judge Howe recommended that the revocation of appellant’s security clearance
be overturned. However, the complete decision is not in the record before the Board and it is not
clear whether this finding became final. Upon the return of the case record, the Office shall
obtain a full copy of this decision and any other relevant evidence pertaining to this matter.29
The Board also finds that appellant failed to submit sufficient evidence to establish that
she was subjected to harassment or retaliation while at the employing establishment.30
Appellant’s allegations constitute mere perceptions or generally stated assertions of
25

Sherry L. McFall, 51 ECAB 436 (2000).

26

Id. See also L.C., supra note 22 (management of work assignments is an administrative matter).

27

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

28

See Sherry L. McFall, supra note 25. See also C.T., supra note 21.

29

See R.E., 59 ECAB ___ (Docket No. 07-1604, issued January 17, 2008) (the Office shares responsibility in the
development of the evidence, particularly when such evidence is of the character normally obtained from the
employing establishment or other government source).
30

See supra notes 14-16.

10

dissatisfaction with her superiors and coworkers which do not establish her claim. The
arbitration decision of April 19, 2006 specifically found that the actions or incidents claimed by
appellant were not sufficiently severe or adverse to constitute harassment. Additionally, the
May 21, 2003 settlement agreement between appellant and the employing establishment advised
appellant’s March 20, 2002 grievance claiming harassment in the workplace was dropped.
Appellant did not otherwise submit sufficient evidence to support her allegations of harassment
and disparate treatment and the employing establishment denied such allegations.
The Office must further develop the factual evidence with regard to whether the
revocation of appellant’s security clearance in January 2005 represents a compensable factor.
Furthermore, appellant has established a compensable work factor with regard to the March 9,
2005 letter of reprimand which violated the labor management agreement. As the Office found
that there were no compensable employment factors, it did not analyze or develop the medical
evidence.31 Therefore, the case will be remanded to the Office for further development of the
factual and medical evidence. After such further development as deemed necessary, it should
issue an appropriate merit decision.
CONCLUSION
The Board finds that appellant has identified a compensable factor of employment with
respect to the March 9, 2005 letter of reprimand and that the case requires further development
regarding whether matters pertaining to the revocation of her security clearance represent a
compensable factor of employment. The case is remanded for further development with respect
to these matters. The Board affirms the Office’s decision regarding other alleged work factors.

31

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

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ORDER
IT IS HEREBY ORDERED THAT the October 6 and May 15, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed in part and set aside in part and
remanded for further proceedings consistent with this decision of the Board.
Issued: November 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, TRENTON CARRIER
ANNEX, Trenton, NJ, Employer
__________________________________________

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

Docket No. 13-300
Issued: September 12, 2013

Case Submitted on the Record

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

JURISDICTION
On November 26, 2012 appellant, through his attorney, filed a timely appeal of an
August 1, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) concerning
a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he has greater than nine percent permanent
impairment of the left arm for which he received a schedule award.
On appeal, appellant’s counsel contends that OWCP erred in relying upon the opinion of
OWCP’s medical adviser instead of the opinion of the impartial medical examiner regarding
appellant’s impairment determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On May 11, 2011 the Board reversed
OWCP’s March 30, 2010 decision denying modification of a June 30, 2009 termination decision.
The Board found that OWCP failed to meet its burden of proof in terminating appellant’s
medical benefits effective June 30, 2009. The Board found that the report of Dr. Andrew M.
Hutter, a second opinion Board-certified orthopedic surgeon, did not address whether appellant
had any residuals from the accepted conditions of partial tear of the left shoulder supraspinatus
tendon and sprain of the left upper arm and shoulder. The Board found the second issue of
whether appellant had any continuing residuals or disability after June 30, 2009 to be moot. The
facts and circumstances of the case as set forth in the Board’s prior decision are incorporated
herein by reference.2
On November 17, 2009 Dr. Nicholas Diamond, an osteopath, conducted a physical
examination and reviewed the medical evidence. Based on his findings, he diagnosed posttraumatic left shoulder partial rotator cuff tear; post-traumatic cervical spine sprain and strain;
left carpal tunnel syndrome and post-traumatic left shoulder myopathy. Using the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides), Dr. Diamond found a 15 percent left upper extremity impairment. Using
Table 15-34, page 475, he rated a three percent impairment for 165 degrees flexion, a three
percent impairment for 160 degrees abduction and a one percent impairment for 75 degrees
internal rotation, resulting in a seven percent impairment using Table 15-35, page 477. Next,
Dr. Diamond determined that a QuickDASH score of 77 percent increased appellant’s
impairment to 10 percent using Table 15-36, page 477. After net adjustment, appellant’s left
upper extremity was eight percent. Dr. Diamond found that appellant had an eight percent
impairment based on left median nerve entrapment based on Table 15-23, page 449. He
combined the impairment ratings for range of motion deficit and left median nerve entrapment at
the wrist to find a total 15 percent left upper extremity impairment.
On March 4, 2010 appellant filed a claim for a schedule award.
On April 21, 2010 Dr. Henry J. Maglioto, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed Dr. Diamond’s report. He disagreed with the impairment
rating by Dr. Diamond. Dr. Maglioto concluded that appellant had an eight percent left shoulder
impairment using the sixth edition of the A.M.A., Guides using Tables 15-35, page 477 and
Table 15-6, page 407. He opined that appellant was not entitled to an impairment rating for left
median nerve entrapment as this was not an accepted condition.
On June 10, 2010 OWCP found a conflict in the medical opinion between Dr. Diamond,
appellant’s physician, and Dr. Maglioto, an OWCP medical adviser, on the extent of appellant’s

2

Docket No. 10-1911 (issued May 11, 2011). On October 22, 2008 appellant, then a 32-year-old rural carrier
associate, filed a traumatic injury claim alleging that on that day he injured his shoulder when he fell as a result of a
dog attack. OWCP accepted the claim for left shoulder contusion, cervical sprain and partial tear of the left shoulder
supraspinatus tendon and sprain of the left shoulder and upper arm. Appellant did not stop work, but has worked
limited duty since the injury.

2

left arm impairment. It referred appellant to Dr. James P. Taitsman, a Board-certified orthopedic
surgeon, to resolve the conflict.
In a July 12, 2010 report, Dr. Taitsman reviewed a history of appellant’s condition,
detailed findings on examination and the case file. He concluded that appellant had a 10 percent
left upper extrmeity impairment based on his carpal tunnel entrapment and left shoulder
condition. Dr. Taitsman noted that he found no diminished range of motion so utilized the
shoulder regional grid to determine impairment. Using Table 15-5, page 402, he assigned a class
1 for impingement syndrome. Dr. Taitsman assigned a grade modifier of 2 to Functional History
(GMFH) and clinical examination using Tables 15-7 and 15-8, pages 406 and 408 and a grade
modifier of one for Clinical Study (GMCS) adjustment using Table 15-9, page 411, resulting in a
net adjustment of 2. He referred to Table 15-5 and that the grade C with modifier goes to grade
E or a five percent impairment. Using Table 15-23, page 449, Dr. Taitsman found grade
modifiers of 1 for test score, 2 for history and Physical Examination (GMPE) for 3 which
resulted in a grade modifier of 2. He noted the functional status as mild which resulted in a total
five percent impairment. Dr. Taitsman found a total 10 percent left upper extremity impairment
based on combining the left arm and hand impairments.
On August 2, 2010 OWCP requested that its medical adviser review Dr. Taitman’s report
and provide an impairment rating. In a report dated August 5, 2010, Dr. Maglioto reviewed
Dr. Taitman’s report and concluded that appellant had only a nine percent left upper extremity
impairment using Table 15-5, page 402.
By decision dated February 2, 2012, OWCP issued a schedule award for a nine percent
impairment to the left upper extremity which ran for a period of 28.08 weeks of compensation
from November 17, 2009 to June 1, 2010.
On February 9, 2012 counsel requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was held on May 16, 2012.
By decision dated August 1, 2012, OWCP’s hearing representative affirmed the
February 2, 2012 schedule award determination.
LEGAL PRECEDENT
Under section 8107 of FECA3 and section 10.404 of the implementing federal
regulations4 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.7 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
Section 8123(a) of FECA9 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11 OWCP’s medical adviser may review the opinion, but the resolution of
the conflict is the responsibility of the impartial medical specialist.12
ANALYSIS
OWCP accepted that appellant sustained a left shoulder contusion, cervical sprain and
partial tear of the left shoulder supraspinatus tendon and sprain of the left shoulder and upper
arm as a result of the October 22, 2008 fall due to a dog attack. On November 17, 2009
Dr. Diamond, appellant’s physician, concluded that appellant had a 15 percent left arm
permanent impairment due to range of motion deficits and carpal tunnel syndrome.
Dr. Maglioto, an OWCP medical adviser, reviewed Dr. Diamond’s reports and concluded that
appellant had an eight percent left arm impairment. OWCP properly referred appellant to
Dr. Taitsman, a Board-certified orthopedic surgeon, for an impartial medical examination and
opinion on the percentage of permanent impairment pursuant to 5 U.S.C. § 8123(a).
Where a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
5

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, ICF: A Contemporary Model of Disablement.

7

Id. at 383-419.

8

Id at 411.

9

5 U.S.C. §§ 8101-8193

10

Id. at § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB
435 (2003).
11

B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB
313 (2003); David W. Pickett, 54 ECAB 272 (2002).
12

V.G., 59 ECAB 635 (2008); Thomas J. Fragale, 55 ECAB 619 (2004); see also Richard R. LeMay, 56 ECAB
341 (2005).

4

factual and medical background, must be given special weight.13 OWCP procedures indicate
that referral to OWCP’s medical adviser is appropriate when a detailed description of the
impairment from the attending physician is obtained.14 Its procedures note that, after all
necessary medical evidence is obtained, the case file must be routed to the medical adviser for an
opinion concerning the nature and percentage of impairment.15 However, cases returned from a
referee medical examiner or an impartial medical specialist should not be routinely sent to an
OWCP medical adviser unless a schedule award is at issue. Where a referee examination is
arranged to resolve a conflict created between a claimant’s physician and the medical adviser
with respect to a schedule award issue, the same medical adviser should not review the referee
specialist’s report. Rather, another medical adviser or consultant should review the file.16
The Board notes that as the impartial medical examination was arranged to resolve a
conflict created between Dr. Diamond and Dr. Maglioto with respect to appellant’s left upper
extremity impairment, it was improper for Dr. Maglioto, to subsequently review Dr. Taitsman’s
July 12, 2010 report. Rather, another OWCP medical adviser should have reviewed the impartial
specialist’s report.17 In reviewing Dr. Taitsman’s report, Dr. Maglioto stated that appellant was
not entitled to an impairment rating for left median nerve entrapment as OWCP had not accepted
this condition. In order to properly resolve the conflict created, however, it is up to the impartial
medical specialist, Dr. Taitsman, to provide a reasoned opinion as to the extent of permanent
impairment in accordance with the A.M.A., Guides. The medical adviser may review the
opinion, but the resolution of the conflict is the responsibility of the impartial medical
specialist.18 Due to this procedure error, the case will be remanded to OWCP to have another
OWCP medical adviser review Dr. Taitsman’s July 12, 2010 report. If it is determined that
Dr. Taitsman’s opinion as to appellant’s permanent impairment is in accordance with the
A.M.A., Guides, then his July 12, 2010 report should be given the special weight of medical
opinion. Should Dr. Taitsman’s opinion require clarification, OWCP should request a
supplemental opinion consistent with Board precedent.19 Following such further development as
is necessary, it shall issue a de novo merit decision on the schedule award issue.

13

See E.H., Docket No. 08-1862 (issued July 8, 2009); I.J., 59 ECAB 408 Docket No. 07-2362 (issued March 11,
2008); Roger Dingess, 47 ECAB 123 (1995).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (August 2002).
15

Id. at Chapter 2.810.8(d) (September 2010); see John W. Slonaker, 35 ECAB 997 (1984).

16

Id. at Chapter 2.810.8(k); see Richard R. LeMay, supra note 12.

17

See John W. Slonaker, supra note 15. See also Carol J. Jackson, 37 ECAB 641 (1986).

18

See, e.g., Willie C. Howard, 55 ECAB 715 (2004) (where OWCP’s medical adviser concurred that the impartial
medical specialist’s impairment rating was appropriate under the fifth edition of the A.M.A., Guides).
19

See Harry T. Mosier, 49 ECAB 688, 693 (1998).

5

CONCLUSION
The Board finds that the case is not in posture for decision with respect to the schedule
award determination as further development of the medical evidence is required.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2012 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: September 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.G., Appellant
and
U.S. POSTAL SERVICE, MAPLEWOOD POST
OFFICE, Maplewood, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0034
Issued: April 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 3, 2019 appellant, through counsel, filed a timely appeal from an April 16,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 16, 2019 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability, commencing May 5, 2017, causally related to her accepted February 19, 2014
employment injury.
FACTUAL HISTORY
On February 21, 2014 appellant, then a 38-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 19, 2014 she injured her right ankle when she slipped
on steps while in the performance of duty. She stopped work on February 20, 2014 and returned
to part-time, limited-duty work for four hours per day on May 12, 2014. OWCP accepted
appellant’s claim for right ankle sprain.4 It paid wage-loss compensation on the supplemental rolls
and placed appellant on the periodic rolls, effective December 14, 2014. On February 3, 2016
appellant returned to full-time, modified duty.
In an October 5, 2016 letter, Dr. Eric K. Reynolds, a podiatrist, held appellant off work
until October 31, 2016. He completed a duty status report (Form CA-17), which noted a
February 19, 2014 date of injury and diagnosis of right foot/ankle fasciitis. Dr. Reynolds indicated
that appellant could work full time with restrictions of lifting and carrying up to four hours a day,
driving a vehicle and standing up to three hours a day, sitting and climbing up to two hours a day,
and bending, stooping, twisting, and pulling/pushing up to one hour a day. He also noted that
appellant was unable to work under extreme weather conditions due to her injury.
On October 24, 2016 appellant accepted a modified assignment offer for a full-time city
carrier assistant position. The duties of the position included lobby assistance up to one hour a
day, casing routes up to one and a half hours a day, and delivering express/parcels and answering
telephones/light office job up to two hours a day. The physical requirements of the position
required lifting less than 35 pounds up to 30 minutes a day, repetitively moving the wrist and
standing up to 2 hours a day, walking up to 2 to 3 hours a day, and sitting up to 3 to 4 hours a day.
On June 20, 2017 appellant filed a Form CA-2a claiming disability from work commencing
May 5, 2017. She described that on May 5, 2017 her supervisor changed her work orders.
Appellant alleged that she experienced right foot pain due to work orders that were not in
agreement with her doctor’s restrictions. On the reverse side of the claim form a representative
for the employing establishment indicated that on October 31, 2016 appellant returned to limited
duty with restrictions of “no work under 50 degrees.”
Appellant submitted letters dated April 17 and 27, 2017 by Dr. Reynolds who reported that
appellant was unable to work in extreme weather conditions, including snow, rain, and heat waves,
and in nothing below 50 or over 80 degrees. Dr. Reynolds explained that appellant must follow
doctor restrictions due to constant swelling and bruising.

4
Appellant continued to receive medical treatment and filed several notices of recurrence (Forms CA-2a) claiming
that she sustained recurrences of disability on July 15, 2014 and June 22, 2016. OWCP accepted the July 15, 2014
recurrence claim and denied the June 22, 2016 recurrence claim.

2

In a May 22, 2017 letter, Dr. Reynolds reported that appellant was incapacitated as of
May 6, 2017 due to a preexisting injury stemming from a February 19, 2014 employment injury.
In a June 22, 2017 development letter, OWCP provided appellant with the definition of a
recurrence of disability and requested that appellant submit additional factual and medical
evidence supporting that she was disabled from employment for the claimed period. It provided a
questionnaire for completion and specifically requested that she submit a physician’s opinion
explaining how the claimed disability was due to the February 19, 2014 employment injury.
OWCP afforded appellant 30 days to provide the requested evidence. A similar letter of even date
was sent to the employing establishment.
On June 22, 2017 appellant submitted a narrative statement to OWCP dated June 2, 2017,
wherein she related that, when she returned to work on October 31, 2016, she had restrictions of
not working outside below 50 degrees. She alleged that she was given work intermittently
depending on if work was available and worked until May 5, 2017. Appellant asserted that work
orders began to change prior to this date because no work was available within her restrictions.
By decision dated July 24, 2017, OWCP denied appellant’s claim for a recurrence of
disability. It indicated that she had not submitted sufficient evidence to establish that she had a
return or increase of disability due to a change in or withdrawal of her modified-duty assignment.
In a September 21, 2017 letter, Dr. Reynolds indicated that appellant was treated for
chronic right foot and ankle pain due to a work-related injury. He completed a Form CA-17, which
indicated that she could work full-time, modified duty.
By decision dated November 22, 2017, OWCP expanded acceptance of her claim to
include right ankle sprain/tear of extensor halluces longus, right ankle peroneal nerve
tendinopathy, right plantar fasciitis, and right tibial anterior tendinopathy.5
On January 23, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period August 5 through 11, 2017. On the reverse side of the CA-7 form M.T., a health and
resource management specialist for the employing establishment, indicated that appellant returned
to limited duty on August 7, 2017 and was sent home because no more work was available.
Appellant additionally submitted CA-7 forms claiming wage-loss compensation for continued
disability. She indicated on the time analysis forms (Form CA-7a) that her reason for using leave
was “no work available.”
In an undated letter, appellant alleged that on May 5, 2017 her supervisor did not want to
follow her work restrictions. She indicated that on August 7, 2017 she worked for four hours
before the Postmaster sent her home because no work was available. Appellant asserted that there
was still no work available for her.

5

In an October 23, 2017 report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon and second-opinion
examiner, indicated that appellant’s current diagnoses connected to the February 19, 2014 employment injury included
right ankle inversion injury with sprain/tear of the extensor halluces longus tendon, tenosynovitis, and tendinopathy
of the peroneal tendons, and the tibialis anterior tendon and plantar fasciitis. He also reported that appellant was able
to return to work on October 31, 2016 and could currently work full-time, modified duty.

3

On February 20, 2018 appellant requested reconsideration.
In letters dated October 30, 2017 through January 29, 2018, Dr. Reynolds recounted that
appellant still had symptoms of chronic right foot and ankle pain due to a work-related injury. He
noted that appellant should continue with her current treatment.
In a March 28, 2018 letter, Dr. Reynolds indicated that appellant had been incapacitated
since May 5, 2017 due to a preexisting February 19, 2014 employment injury. He explained that
on May 8, 2017 appellant continued to have symptoms, including right foot pain, bruising, and
swelling. Dr. Reynolds advised that appellant was currently able to work eight hours per day with
one hour of walking and standing.
On May 16, 2018 OWCP requested that the employing establishment confirm whether
there was work available for appellant from May 5 through August 7, 2017. It also requested
confirmation about whether appellant was sent home after four hours of work on August 7, 2017
and whether her work demands exceeded her restrictions.
In a May 16, 2018 letter, M.T., an employing establishment health and resource
management specialist, recounted that appellant accepted a modified job offer on October 13, 2016
and subsequently presented with worsened conditions on October 24, 2016. She explained that on
November 25, 2016 appellant’s supervisor noted that appellant did not report to work due to the
weather. M.T. reported that on May 5, 2017 appellant completed a full workday and, at the end
of her tour, she argued with management and requested that they abide with her “weather
restrictions.” She confirmed that there were no changes to appellant’s existing job offer or duties
and that there was work available from May 6 through August 7, 2017. M.T. noted that there
continued to be work available for appellant.
In a May 21, 2018 decision, OWCP denied modification of the July 24, 2017 decision.
On June 1, 2018 appellant, through counsel, requested reconsideration. She reiterated that,
when she finished her shift on May 5, 2017, she was told that the employing establishment no
longer had work for her based on her restrictions. Appellant indicated that she reached out to the
injury compensation specialist on several occasions and was told to stay home because there was
no work available.6
Appellant submitted an August 6, 2018 prescription note and report from Dr. Reynolds
regarding her current medical treatment for her right foot injury.
By decision dated January 9, 2019, OWCP denied modification of the May 21, 2018
decision.
On January 18, 2019 appellant, through counsel, requested reconsideration. Counsel
alleged that, according to a time analysis form (Form CA-7a) dated January 23, 2018, appellant

6
On June 29, 2018 appellant filed another Form CA-2a claiming that she sustained a recurrence of disability on
August 7, 2017. In a January 7, 2019 letter, OWCP informed her that the evidence of record indicated that this
recurrence claim was the same recurrence from May 5, 2017 since the limited-duty job offer did not change. It advised
appellant to refer to the May 21, 2018 decision and follow her appeal rights.

4

was sent home on August 7, 2017 because no work was available. He also argued that the May 5,
2017 and August 7, 2017 dates should be treated as two separate recurrences of disability.
In an April 16, 2019 decision, OWCP denied modification of the January 9, 2019 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.7 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.8
OWCP procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
The change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.9
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature of extent of the limited-duty job requirements.10
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to employment

7
20 C.F.R. § 10.5(x); T.J., Docket No. 18-0831 (issued March 23, 2020); J.D., Docket No. 18-1533 (issued
February 27, 2019).
8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).
10
J.S., Docket No. 19-1402 (issued November 4, 2020); S.D., Docket No. 19-0955 (issued February 3, 2020);
Terry R. Hedman, 38 ECAB 222 (1986).

5

injury, and supports that conclusion with medical reasoning.11 Where no such rationale is present,
the medical evidence is of diminished probative value.12
ANALYSIS
The Board finds that the case is not in posture for decision.
The record reflects that on October 24, 2016 appellant accepted a modified assignment
offer for a full-time city carrier assistant position. On June 20, 2017 appellant filed a Form CA2a claiming a recurrence of disability from work commencing May 5, 2017. She alleged that, after
she completed her shift on May 5, 2017, her supervisor informed her that the employing
establishment did not have work available within her restrictions. In a May 16, 2018 letter, a health
and resource management specialist for the employing establishment, indicated that there were no
changes to appellant’s job duties and that there was work available on May 6, 2017. Appellant
also filed several CA-7 forms claiming disability from work beginning August 5, 2017 and
asserted that no work was available within her restrictions. On the reverse side of the January 23,
2018 CA-7 form the employing establishment’s health and resource management specialist
indicated that appellant was sent home because no more work was available.
The Board finds that the factual evidence of record is insufficient to determine whether
appellant sustained a recurrence of disability due to a withdrawal of her light-duty position.13 The
employing establishment has provided conflicting information regarding whether work was
available within appellant’s work restrictions during the claimed period of disability. Accordingly,
the evidence of record must be fully developed so that it contains accurate information regarding
appellant’s claim in order to determine whether she was unable to work beginning May 5, 2017
because of a change or withdrawal of her limited-duty assignment due to an employment injury.14
Is it well established that, proceedings under FECA are not adversarial in nature and, while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15
Accurate information regarding whether appellant’s limited-duty assignment was available
during the claimed period of disability is essential to determine whether she sustained a recurrence
of total disability.16 This evidence is of the character normally obtained from the employing
11

J.D., Docket No. 18-0616 (issued January 11, 2019); C.C., Docket No. 18-0719 (issued November 9, 2018);
Ronald A. Eldridge, 53 ECAB 218 (2001).
12

E.M., Docket No. 19-0251 (issued May 16, 2019); H.T., Docket No. 17-0209 (issued February 8, 2019); Mary A.
Ceglia, Docket No. 04-0113 (issued July 22, 2004).
13

See M.W., Docket No. 20-0881 (issued January 13, 2021); see also L.F., Docket No. 19-0519 (issued
October 24, 2019).
14
See P.H., Docket No. 20-0039 (issued April 23, 2020); D.M., Docket No. 18-0527 (issued July 29, 2019); J.G.,
Docket No. 17-0910 (issued August 28, 2017); M.A., Docket No. 16-1602 (issued May 22, 2017).
15

M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018).

16

See K.T., Docket No. 17-0009 (issued October 8, 2019); Y.R., Docket No. 10-1589 (issued May 19, 2011).

6

establishment and is more readily accessible to OWCP than to her.17 On remand OWCP shall
request that the employing establishment furnish documentation clarifying whether appellant’s
modified-duty assignment was available or had been withdrawn for the claimed period beginning
May 5, 2017. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.F., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF THE
INSPECTOR GENERAL, Washington, DC,
Employer
__________________________________________

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

Docket No. 07-355
Issued: April 18, 2007

Case Submitted on the Record

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

JURISDICTION
On November 21, 2006 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated March 16, 2006 denying his claim for a schedule
award for an employment-related loss of hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable hearing loss entitling him to a schedule
award.
FACTUAL HISTORY
On September 27, 2005 appellant, then a 56-year-old criminal investigator, filed an
occupational disease claim alleging that he sustained hearing loss due to factors of his
employment. He alleged that he was aware of high frequency hearing loss during his former

federal employment as an official agent,1 but in July 2005 he did not pass the hearing test. By
letter dated November 16, 2005, the Office informed appellant that the information was not
sufficient to support his claim. The Office requested additional factual and medical evidence
necessary to adjudicate his claim. In response, appellant submitted a statement dated
November 21, 2005 wherein he noted that during his federal employment he was routinely
exposed to simulative explosives and weapons range firing in training scenarios. He also noted
that he was required to maintain strategic security positions in airports arrivals and departures
where he was in close proximity of protectees on runways and tarmacs all over the world. In
further support, appellant submitted records from his prior employment with the Secret Service.
By letter dated January 12, 2006, the Office referred appellant to Dr. John Ruth, Jr., a
Board-certified otolaryngologist, for an evaluation to determine whether he had an employmentrelated hearing loss. Dr. Ruth reviewed an audiogram dated January 27, 2006. The audiogram
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 40 and on the right of 25,
25, 10 and 25 respectively. Dr. Ruth opined that appellant was “presently not a good candidate
for amplification.
On February 15, 2006 the Office medical adviser concluded that appellant did not have a
ratable hearing loss. He also noted that Dr. Ruth specifically did not recommend a hearing aid.
By decision dated March 16, 2006, the Office accepted appellant’s claim for a hearing
loss due to noise exposure but determined that he did not have a ratable impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining permanent loss, or loss of use, of specified members
of the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a mater which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides) has been adopted by the Office for
evaluating schedule losses and the Board has concurred in such adoption.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
1

Appellant worked for the U.S. Secret Service from 1975 to 1999. From September 1999 to October 2001,
appellant worked for a private corporation and starting October 16, 2001 he was employed with the current
employing establishment.
2

5 U.S.C. §§ 8101-8193.

3

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

A.M.A., Guides 250.

2

each frequency are added up and averaged.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
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.7 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing losses.8
ANALYSIS
In the present case, the Office medical adviser reviewed otologic and audiologic testing
performed by Dr. Ruth, the Board-certified otolaryngologist to whom the Office referred
appellant for a current evaluation and correctly applied the Office’s standardized procedures to
the November 27, 2006 audiogram. Testing for the right ear at frequency levels of 500, 1,000,
2,000 and 3,000 cps revealed decibel losses of 10, 10, 10 and 40 respectively. These decibel
losses were totaled at 70 and divided by 4 to obtain the average hearing loss per cycle of 17.5.
The average of 17.5 was then reduced by the 25 decibel fence (the first 25 decibels are
discounted as discussed above) to equal -7.5 percent hearing loss for the right ear, which when
multiplied by 1.5, resulted in a zero ratable loss in the right ear. Testing on the left ear at
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 25, 25, 10 and 25,
respectively. These decibel losses were totaled at 85 and divided by 4 to obtain the average
hearing loss per cycle of 21.25. The average of 21.25 was then reduced by the 25 decibel fence
to equal -2.75 which was multiplied by 1.5 to result in a zero ratable loss in 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 properly applied the Office’s standards to
the November 27, 2006 audiogram. The result is a nonratable hearing loss bilaterally.9 The
Office medical adviser properly relied on the November 27, 2006 audiogram as it was part of
Dr. Ruth’s evaluation and met all the standards.10
The Office accepted that appellant has an employment-related hearing loss. He would be
entitled to medical benefits related to his hearing loss, including hearing aids, if medically
necessary. However both Dr. Ruth and the Office medical adviser have concluded that appellant
does not require hearing aids.

5

Id.

6

Id.

7

Id.

8

Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

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 had a zero percent binaural hearing loss.
10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter
3.600.8(a)(2) (September 1994).

3

CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing, thus he is not
entitled to an award.11
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 16, 2006 is affirmed.
Issued: April 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

Appellant submitted new evidence on appeal. As the Office did not consider this evidence in reaching a final
decision, the Board may not review the evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

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

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

Docket No. 09-678
Issued: November 2, 2009

Case Submitted on the Record

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

JURISDICTION
On January 9, 2009 appellant filed a timely appeal of the decision of the Office of
Workers’ Compensation Programs dated November 12, 2008 denying his claim for a traumatic
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on September 28, 2008, as alleged.
FACTUAL HISTORY
On September 28, 2008 appellant, then a 39-year-old mail handler, filed a traumatic
injury claim alleging that on that date he injured his left knee and back while pulling mail from a
stationary truck trailer. On the reverse of the claim form, his supervisor advised that he was seen
at North State Hospital by Dr. Goodwin.
By letter dated October 8, 2008, the Office notified appellant that the evidence was
insufficient to establish his claim as there was no medical evidence containing a diagnosis of any

condition arising from the September 28, 2008 incident. It advised him to explain how the injury
occurred as well as the time it occurred and to provide a medical narrative from his treating
physician containing a diagnosis and a rationalized opinion as to the cause of his condition.
Appellant was given 30 days to provide the requested information.
On October 14, 2008 the Office received a September 29, 2008 authorization for
examination and/or treatment (Form CA-16) and a September 30, 2008 attending physician’s
report (Form CA-20) by a Dr. Goodwin.1 The employing establishment authorized treatment
with Dr. Goodwin at North State Medical Center. In the attending physician’s report,
Dr. Goodwin diagnosed knee pain. Under history of injury, the physician noted that appellant
injured his right knee approximately one month ago when he fell. On September 29, 2008
Dr. Goodwin noted that appellant jarred his back and hit his knees while driving a piece of
equipment. The physician checked “yes” to the question of whether the injury was employment
related. Dr. Goodwin noted that appellant had a history of injury and fall on his right knee in the
prior month.
By decision dated November 12, 2008, the Office found that the September 28, 2008 left
knee incident occurred as alleged. However, appellant’s claim was denied as the medical
evidence did not provide a diagnosis other than knee pain and did not attribute it to the
September 28, 2008 injury. The Office found that in the absence of medical opinion evidence
containing a diagnosis in connection with the workplace exposure, appellant failed to establish
that he sustained an injury on September 28, 2008, as alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act; that the claim was filed within
the applicable time limitation; that an injury was sustained while in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the

1

No first name was given on the form.

2

5 U.S.C. §§ 8101-8193.

3

C.S., 60 ECAB ___ (Docket No. 08-1585, issued March 3, 2009).

4

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., 60 ECAB ___ (Docket No. 09-60, issued March 17, 2009).

6

D.B., 58 ECAB ___ (Docket No. 07-440, issued April 23, 2007).

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant alleged that he sustained injury to his back and left knee on September 28,
2008 when he pulled mail from a truck trailer. The Office accepted that the employment
incident occurred as alleged. Appellant sought treatment at North State Medical Center on
September 29, 2008. In a September 30, 2008 CA-20 form, appellant provided a history of
falling on his right knee one month prior and hitting his knees and jarring his back on
September 29, 2008. The medical evidence, however, is deficient as it fails to provide a firm
diagnosis; and provides no narrative opinion on causal relationship between any diagnosed
condition and the employment incident.
Dr. Goodwin noted right knee pain under diagnosis, which is a description of the
symptoms rather than a clear diagnosis of the medical condition.11 The physician reported that
appellant had findings of knee and back pain without providing further explanation. It is well
established that the checking of a box yes, without more by way of medical rationale, is of little
probative value in establishing causal relationship.12 While an opinion on causal relationship
may not require extensive explanation, this is not a case of a clear-cut injury that requires no
explanation.13 Moreover, Dr. Goodwin attributed appellant’s condition to an injury sustained
7

C.B., 60 ECAB ___ (Docket No. 08-1583, issued December 9, 2008); D.G., 59 ECAB ___ (Docket No. 081139, issued September 24, 2008)
8

Y.J., 60 ECAB ___ (Docket No. 08-1167, issued October 7, 2008); A.D., 58 ECAB ___ (Docket No. 06-1183,
issued November 14, 2006).
9

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

10

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
11

The Board notes that the employing establishment issued a Form CA-16. A properly executed Form CA-16
creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim. Tracey P. Spillane, 54 ECAB 608 (2003); Elaine M.
Kreymborg, 41 ECAB 256, 259 (1989); Pamela A. Harmon, 37 ECAB 263 (1986). The Office did not address the
issue in the November 12, 2008 decision.
12

See D.D., 57 ECAB 734 (2006); Barbara J. Williams, 40 ECAB 649 (1989).

13

The Office has recognized that in certain clear-cut traumatic injuries, such as a fall from a scaffold with a
broken arm, may require only an affirmative statement to establish causal relationship. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d)(2) (June 1995).

3

during the prior month or on September 29, 2008, the following day. The physician’s report
does not explain how the accepted employment-related incident resulted in any diagnosis or
disability for work. There is no medical evidence confirming its origin and its relationship to the
accepted employment incident.
As noted, appellant must submit a narrative medical report from a physician with a
complete factual and medical history which explains how the September 28, 2008 work incident
caused a diagnosed medical condition. The physician’s medical rationale explaining causal
relationship is critical to appellant’s claim. Appellant failed to provided a medical opinion
finding a specific diagnosis and explaining how this condition related to the September 28, 2008
employment incident. He has not met his burden of proof in establishing the claim.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
September 28, 2008, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 12, 2008 is affirmed.
Issued: November 2, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4