United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Employer
__________________________________________

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

Docket No. 15-1612
Issued: March 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 21, 2015 appellant filed an appeal of a January 22, 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(e), the Board has jurisdiction
over the merits of this case.2
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of his
right upper extremity and a one percent permanent impairment of his left upper extremity, for
which he has received schedule awards.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board. By order dated November 17, 2015, the Board
exercised its discretion and denied the request for oral argument as the issue on appeal could be fully addressed on
the record. Order Denying Request for Oral Argument, Docket No. 15-1612 (issued November 17, 2015).

FACTUAL HISTORY
Appellant, a 51-year-old investigator, filed a claim for traumatic injury (Form CA-1) on
March 22, 2007 alleging that he sustained aggravation of a herniated cervical disc when the bus on
which he was a passenger abruptly stopped. OWCP accepted the claim for neck sprain,
aggravation of degenerative cervical intervertebral disc, C5-7, and aggravation of cervical
spondylosis with myelopathy, C6-7. Appellant returned to work intermittently until he stopped
work on March 31, 2008. He retired from federal employment on February 28, 2009.
Appellant underwent a magnetic resonance imaging (MRI) scan of his cervical spine on
January 21, 2011. The results of this test showed: degenerative changes of the intervertebral discs
with mild posterior C2-3, C3-4, and C7-Tl disc bulges and/or osteophytic spurring; moderate
broad-based posterior C5-6 disc protrusion which displaced the spinal cord posteriorly; and mild
narrowing of the spinal canal at C6-7.
In a report dated May 20, 2013, Dr. J. Arden Blough, a specialist in family practice, found
that appellant had a 14 percent impairment to the right upper extremity and a 14 percent
impairment to the left upper extremity based on moderate sensory and moderate motor deficits of
the C6 nerve. He advised that on examination of the cervical spine appellant had tenderness to
palpation in the bilateral paraspinal musculature from C2 through TI. Dr. Blough noted that
appellant’s cervical pain radiated into the upper extremities with numbness and tingling, worse on
the right side. He reported that appellant showed weakness against resistance as demonstrated in
the cervical flexors and extensors. Appellant also had weakness in the bilateral elbows and wrists
against resisted flexion and extension. Dr. Blough tested appellant with a Jamar dynamometer,
which revealed 72 pounds of force with the right hand and 78 pounds with the left hand.
Dr. Blough found that appellant had a 14 percent permanent impairment to the right upper
extremity due to chronic radicular symptoms to his right upper extremity, which caused moderate
sensory and moderate motor deficits of the C6 nerve. He calculated his impairment rating for the
neck, shoulders, arms, and hands by using The Guides Newsletter “Rating Spinal Nerve Extremity
Impairment using the sixth edition” (July/August 2009). Dr. Blough relied on Table 1 of the July
and August 2009 The Guides Newsletter, finding that he had a class 1 impairment for a moderate
sensory deficit of the C6 nerve with a mid-range default value of three percent and a class 1,
moderate motor deficit of the C6 nerve with a mid-range default value of nine percent, based on his
history of injury with continued complaints of pain, neuropathy, and weakness as documented in
previous examinations and present at the time of his current examination. He noted that
appellant’s January 21, 2011 cervical MRI scan showed degenerative changes and C2-3, C3-4, and
C7-Tl disc bulges and/or osteophytic spurring, with C5-6 disc protrusion and mild narrowing of the
spinal canal at C6-7. Dr. Blough also noted that the result of a February 15, 2011
electromyelogram (EMG) showed findings suggestive of and consistent with mild sensory
neuropathy involving the upper extremities, with superimposed mild bilateral median neuropathy
of the wrists compatible with mild bilateral carpal tunnel syndrome.3

3

The actual February 15, 2011 EMG report is not included in the instant record.

2

Applying the net adjustment formula at Section 15.3, pages 406-11 of the American
Medical Association, Guides to the Evaluation Permanent Impairment, (sixth edition) (A.M.A.,
Guides),4 Dr. Blough found that the grade modifier at Table 15-7, page 406 for functional history
was one, for pain/symptoms with vigorous/strenuous activity, a moderate problem, consistent
with appellant’s QuickDash score of 59.4. He found that the grade modifier for clinical studies
at Table 15-9, page 410 was two. Dr. Blough calculated the net adjusted default impairment of
grade E. This yielded a five percent impairment for moderate sensory deficit and a nine percent
impairment for moderate motor deficits, in accordance with Table 1 of The Guides Newsletter.
Relying on the Combined Values Chart at page 604 of the A.M.A., Guides, Dr. Blough rated a 14
percent impairment to the right upper extremity due to C6 radiculopathy. He utilized the same
methods described above to find that appellant had a 14 percent left upper extremity impairment
for C6 radiculopathy.
On November 13, 2013 appellant filed a Form CA-7 claim for schedule award based on a
partial loss of use of his right and left upper extremities.
In a March 17, 2014 report, Dr. David D. Zimmerman, a Board certified internist and an
OWCP medical adviser, found the ratings of Dr. Blough could not be accepted. He found that
the excellent result on the dynamometer precluded the acceptance of weakness in either upper
extremity. The weakness rating was based only on subjective findings which were inconsistent
with prior examinations. Dr. Zimmerman concluded that these strength deficits might be due to
entrapment neuropathy of the right and left upper extremity as shown by EMG/nerve conduction
study (NCS) results. He recommended referral to a second opinion examination.
In an April 3, 2014 report, OWCP medical adviser reiterated that appellant’s impairment
rating could be based on radicular residuals of a cervical spine diagnosis, noting that a recent
EMG/NCS was reported to have shown right and left upper extremity peripheral nerve entrapment,
weakness and pain.
OWCP referred appellant for a second opinion examination and impairment evaluation
with Dr. Kala Danushkodi, Board-certified in physical medicine and rehabilitation. In a May 1,
2014 report, she found that appellant had a six percent permanent impairment of the right upper
extremity and a one percent permanent impairment of the left upper extremity. Dr. Danushkodi
advised that on examination appellant had normal cervical range of motion, diffuse tenderness of
cervical muscles, a positive Spurling sign with radiating pain, full range of shoulder motion,
manual muscle strength five over five, altered sensation in C5-6 dermatome and left C7
dermatome, symmetric deep tendon reflexes, normal upper extremity muscle strength, and steady
gait. She relied on Table 1 of The Guides Newsletter, finding that appellant had a class 1
impairment for a mild sensory deficit of the upper trunk C5-6 nerve with a value of three percent
with no motor deficit of the C6 nerve. Applying the net adjustment formula at section 15.3, pages
406-11 of the A.M.A., Guides,5 Dr. Danushkodi found that the grade modifier at Table 15-7,
page 406 for functional history was two, for constant symptoms and ability to perform self-care
unassisted. She found that the grade modifier for clinical studies at Table 15-9, page 410 was
4

A.M.A., Guides 406-11.

5

Id.

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two, based on MRI scan results showing moderate pathology. Dr. Danushkodi calculated the net
adjusted default impairment for a total of one which produced a rating of grade E. She found
that this yielded a six percent impairment for moderate sensory deficit based on radiculopathy, in
accordance with Table 1 of the July and August 2009 The Guides Newsletter.
With regard to the left upper extremity, Dr. Danushkodi found that appellant had a class 1
impairment for a mild sensory deficit of the middle trunk C7 nerve, with a default impairment of
one percent and no motor deficit of the C7 nerve. She found a grade modifier of two at Table 157, page 406 for functional history, for constant symptoms and ability to perform self-care
unassisted. Dr. Danushkodi rated a grade modifier of two for clinical studies at Table 15-9, page
410 based on MRI scan results showing moderate pathology. She calculated the net adjusted
default impairment for a total of one which produced a rating of grade E. Dr. Danushkodi found
that this yielded a one percent upper extremity impairment for moderate sensory deficit based on
radiculopathy.
In a May 13, 2014 report, Dr. Zimmerman agreed with Dr. Danushkodi’s rating for the left
upper extremity, but disagreed with the rating for the right. He noted that, although
Dr. Danushkodi selected a mild sensory deficit assigned to class 1, with a default value of three
percent, there is not rating in The Guides Newsletter that corresponds to three percent. The only
option for a C5 mild sensory deficit was from zero to one percent. The only options for C6 mild
sensory deficient were from zero to two percent. Giving appellant the higher rating and using
Dr. Danushkodi’s examination findings, he found a right upper extremity rating of two percent.
By decision dated May 30, 2014, OWCP granted appellant a schedule award for a two
percent permanent impairment of the right upper extremity and a one percent impairment of the
left upper extremity for the period May 1 to July 5, 2014, for a total of 9.36 weeks of
compensation.
On June 27, 2014 appellant requested a review of the record.
In a June 24, 2014 report, received by OWCP on July 1, 2014, Dr. Kenri Honda, a
chiropractor, advised that he had treated appellant since September 2008 for his work-related
cervical condition and expressed his disagreement with the impairment rating of OWCP medical
adviser. He did not provide evidence of subluxation as shown by x-ray evaluation.
By decision dated January 22, 2015, an OWCP hearing representative affirmed the
May 30, 2014 decision.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides, (6th ed. 2009). See
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013) and see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to 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 adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his employment.9
ANALYSIS
OWCP accepted the conditions of neck sprain, aggravation of degenerative cervical
intervertebral disc, C5-7, and aggravation of cervical spondylosis with myelopathy, C6-7.
With regard to peripheral nerve impairments and radiculopathy to the upper or lower
extremities resulting from spinal injuries, The Guides Newsletter is to be applied.10
Dr. Zimmerman rated a two percent permanent right upper extremity impairment and a one
percent permanent left upper extremity impairment for radiculopathy. He properly used Table 1 of
The Guides Newsletter, finding that appellant had a class 1 impairment which yielded a grade of E
for mild sensory deficit at C5-6, which yielded a two percent impairment for the right upper
extremity and a one percent impairment for the left upper extremity. The medical adviser based
his impairment on peripheral nerve entrapment stemming from the cervical spine, as instructed by
OWCP in its April 3, 2014 memorandum. He also based these ratings on the examination findings
of Dr. Danushkodi and explained the calculation error made in her rating.
Dr. Blough, appellant’s treating physician, rated a 14 percent bilateral upper extremity
impairment, but this rating was based on inconsistent examination finds regarding strength
deficit. As Dr. Zimmerman’s rating was the only rating that properly followed The Guides
Newsletter, the Board finds that OWCP properly found two percent permanent impairment of the
right upper extremity and one percent permanent impairment of the left upper extremity.11 The
Board therefore affirms that appellant has not established more than a two percent permanent
right upper extremity and a one percent permanent left upper extremity permanent impairment for
radiculopathy.

8

Id.

9

Veronica Williams, 56 ECAB 367, 370 (2005).

10

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, supra note 8.
11

The report from Dr. Honda does not constitute medical evidence pursuant to section 8101(2) because he did not
provide a diagnosis of subluxation based on x-ray results. See 5 U.S.C § 8101(2). Section 8101(2) of FECA
provides that the term physician includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to
exist and subject to regulations by the Secretary. Without a diagnosis of spinal subluxation from an x-ray, a
chiropractor is not considered a physician under FECA and his opinion does not constitute competent medical
evidence. See Jay K. Tomokiyo, 51 ECAB 361, 367-68 (2000).

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has more than a two percent
permanent impairment of his right upper extremity and a one percent permanent impairment of
his left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2015 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 3, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newbury Park, CA, Employer
__________________________________________

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Appearances:
Jeffery Scott Fultz, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0001
Issued: August 2, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 30, 2016 appellant, through her representative, filed a timely appeal from
an April 5, 2016 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.

Appellant requested oral argument before the Board. By order dated April 18, 2017, the Board exercised its
discretion and denied the request, finding that the issues could properly be adjudicated based on the evidence of record.
Order Denying Oral Argument, Docket No. 17-0001 (issued April 18, 2017).

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing May 7, 2015, causally related to accepted bilateral shoulder conditions.
FACTUAL HISTORY
OWCP accepted that on or before November 12, 2012 appellant, then a 46-year-old city
mail carrier in modified duty status,4 performed repetitive upper extremity motions while casing
and handling mail, resulting in an unspecified disorder of the bursae and tendons of both shoulders,
bilateral shoulder tendinitis, and bilateral partial rotator cuff tears.
Appellant was first followed by Dr. Neil Ghodadra, an attending Board-certified surgeon,
who submitted reports from September 9, 2011 to September 6, 2013 diagnosing bilateral shoulder
impingement, snapping scapula syndrome, biceps tendinitis, acromioclavicular arthritis, rotator
cuff tears, rotator cuff tendinitis, and impingement syndrome. Her mobility and symptoms
improved with physical therapy and subacromial injections.5 Dr. Ghodadra limited lifting to 10
pounds, and restricted repetitive upper extremity motion.
OWCP paid appellant wage-loss compensation for the period November 30, 2013 through
March 8, 2014 as there was no work available within her medical restrictions.
On February 24, 2014 Dr. Walter A. Thomas, an attending Board-certified orthopedic
surgeon, performed an authorized arthroscopic right rotator cuff repair with biceps tenodesis,
labral debridement, glenohumeral synovectomy, and subacromial decompression. Appellant
remained off work. She participated in physical therapy from February through September 2014.
Appellant’s postoperative course was complicated by a superficial venous thrombosis (SVT) in
the right basilic vein above the elbow, which resolved by November 14, 2014.
On October 15, 2014 OWCP obtained a second opinion from Dr. Ghol Bahman Ha’Eri, a
Board-certified orthopedic surgeon, to determine whether appellant remained disabled from work
due to the accepted right shoulder conditions. Dr. Ha’Eri reviewed the medical evidence of record
and a statement of accepted facts (SOAF) provided by OWCP. On examination, he found
restricted motion in all planes of the right shoulder and a positive impingement test. Dr. Ha’Eri
diagnosed bilateral rotator cuff tendinopathy with a partial rotator cuff tear, and postsurgical
adhesive capsulitis. He opined that appellant required closed manipulation of the right shoulder
under anesthesia to address adhesive capsulitis, followed by a three-month recovery period.
4

Appellant had been working six hours a day light duty since May 2010, when she underwent bilateral
mastectomies. She had upper extremity lymphedema following the May 2010 surgery. In a January 18, 2013 report,
Dr. John S. Link, an attending oncologist, noted following appellant for breast cancer since May 2010. Appellant
developed lymphedema in the left arm due to cancer treatment, requiring intermittent follow up as necessary. Dr. Link
opined that appellant’s bilateral shoulder issues were “ligamental or capsular in nature” due to repetitive motion, and
not to breast cancer or its treatment.
5

A November 21, 2013 magnetic resonance imaging (MRI) scan of the right shoulder showed marked thickening
of the supraspinatus and infraspinatus tendons, indicating severe tendinopathy, supraspinatus tendon tears,
degenerative fraying of the superior and anterior glenoid labra, and acromioclavicular capsule hypertrophy.

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Appellant could then return to full-time work with restrictions against reaching above the shoulder,
operating a motor vehicle, and pulling, pushing, or lifting more than 10 pounds. Dr. Ha’Eri
permitted appellant to perform repetitive upper extremity motions intermittently for up to four
hours a day. In a December 30, 2014 addendum report, he opined that a December 15, 2014
arthrogram6 showed postsurgical status, complicated by adhesive capsulitis.
Dr. Thomas held appellant off work through March 16, 2015, when he found appellant able
to return to modified work. He restricted lifting to three pounds, no work at or above shoulder
level, and no repetitive pushing or pulling with the right upper extremity.
On April 3, 2015 the employing establishment offered appellant a full-time modified
position as a customer care agent in a call center. The job required occasional simple grasping,
use of a computer mouse, and occasional use of a single finger on a computer keyboard. Appellant
accepted the offer. She returned to work on April 6, 2015 in the offered customer care agent job.
OWCP paid appellant wage-loss compensation for work absences related to physical therapy and
medical appointments through April 22, 2015.
In an April 22, 2015 report, Dr. Thomas restricted appellant from repetitive pulling and
pushing, work at or above the shoulder level, and working more than 40 hours a week. He also
mandated a 10-minute break each hour.
Appellant stopped work on May 6, 2015. On May 15, 2015 she claimed wage-loss
compensation (Form CA-7) for the period May 7 to 15, 2015. On May 29, 2015 appellant claimed
wage-loss compensation (Form CA-7) for the period May 16 to 29, 2015. She filed subsequent
claims for periods of disability beginning May 30, 2015.
In a June 8, 2015 letter, OWCP notified appellant of the evidence needed to establish her
claim for wage-loss compensation from May 7 to 29, 2015 and continuing. It noted that appellant’s
modified position remained open and available to her during the period for which she claimed
wage-loss compensation. OWCP afforded appellant 30 days to submit medical evidence from her
attending physician explaining how and why the accepted shoulder conditions would disable her
from performing her modified-duty position as of May 7, 2015.
In response, appellant provided May 7 and 12, and June 15, 2015 statements, asserting that
her modified duties commencing April 6, 2015 caused increased swelling and pain in both
shoulders and biceps, necessitating the 10-minute hourly break as prescribed by Dr. Thomas. She
noted that on May 7, 2015, Supervisor T.P. directed employees not to stop answering the
telephones due to “special projects.” Appellant met with him after the meeting, noting that her 10minute break each hour was recorded as “special project.” T.P. met with another official, then
instructed appellant to “clock out and go” as the employing establishment no longer had work
available within her restrictions. Appellant also submitted additional medical evidence.

6

A December 15, 2014 MRI scan arthrogram study of the right upper extremity showed postsurgical change of the
supraspinatus tendon, a partial thickness tear of the infraspinatus tendon, and acromioclavicular joint hypertrophy
status post subacromial decompression.

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In a June 3, 2015 report, Dr. Thomas opined that appellant had attained maximum medical
improvement, and would require permanent work restrictions against repetitive pulling and
pushing with the right arm, no overhead work, and no lifting over five pounds with the right arm.
He released appellant to modified duty on June 4, 2015, with lifting limited to three pounds, a 10minute break each hour, and working for no more than 8 hours a day or 40 hours a week.
Dr. Thomas repeated these restrictions on June 12, 19, and 29, 2015.
On July 1, 2015 appellant filed a notice of recurrence (Form CA-2a) claiming a recurrence
of disability commencing April 9, 2015 while performing modified work. She attributed an
increase in pain and swelling in the right upper extremity to work duties performed after she
returned to work on April 6, 2015 as a modifier customer care agent. Appellant stopped work on
May 7, 2015.
In a July 2, 2015 letter, the employing establishment acknowledged that on May 7, 2015,
“due to the change in [appellant’s] restrictions,” her supervisor “referred” appellant “back to her
home District” to file a formal claim for recurrence of disability.
In a July 10, 2015 report, Dr. Thomas explained that he increased appellant’s work
restriction in April 2015 to include a 10-minute break each hour “to avoid aggravation of her
injuries.”
In a July 17, 2015 decision, OWCP denied appellant’s claim for a recurrence of disability
beginning May 7, 2015, finding that the medical evidence of record did not support an objective
worsening of the accepted conditions, such that she could no longer perform the modified customer
care agent position. It found that Dr. Thomas did not provide sufficient medical rationale
explaining how and why the accepted bilateral shoulder bursitis, tendinitis, and partial rotator cuff
tears disabled her from modified duty as of May 7, 2015.
In an August 12, 2015 letter, appellant, through her authorized representative, requested a
review of the written record by an OWCP hearing representative. She submitted a July 14, 2015
report from Dr. Thomas, prescribing permanent work restrictions against repetitive pushing,
pulling, grasping, or gripping with either upper extremity, overhead work with either arm, or lifting
with either arm. Dr. Thomas limited repetitive upper extremity motions to 30 minutes an hour.
In an August 11, 2015 letter, the employing establishment notified appellant that it
removed her from her bid position, “job #95842009,” effective that day, because Dr. Thomas’
July 14, 2015 permanent work restrictions precluded her from performing the essential functions
of the job. Appellant would “be considered an unassigned regular letter carrier, “and would remain
in her “current limited[-]duty assignment and schedule.” She remained off work. Appellant
continued to claim wage-loss compensation for total disability.
OWCP found a conflict of medical opinion between Dr. Ha’Eri, the second opinion
physician, for the government, and Dr. Thomas, appellant’s attending physician, regarding
appellant’s work restrictions. To resolve the conflict, it selected Dr. John Kaufman, a Boardcertified orthopedic surgeon, as the impartial medical specialist. Dr. Kaufman provided a
November 13, 2015 report, reviewing a SOAF and the medical evidence of record. On
examination Dr. Kaufman found restricted right shoulder motion in all planes, diminished grip

4

strength on the right, and tenderness to palpation in both shoulders. He diagnosed bilateral rotator
cuff tears and impingement syndrome, with postsurgical status on the right. Dr. Kaufman found
that appellant had attained maximum medical improvement. He opined that appellant was able to
return to restricted work as of March 1, 2015, with no overhead work, lifting, pulling, and pushing
limited to seven pounds, and a 10-minute break each hour. Dr. Kaufman noted that these
restrictions were wholly attributable to the accepted bilateral shoulder conditions.7 In a
February 3, 2016 supplemental report, he changed his opinion to find that appellant could resume
full-time modified work as a customer care agent within the November 13, 2015 restrictions, but
that he “believe[d] that [appellant] could work without the requirements of 10-minute breaks every
hour.”
The employing establishment noted on February 5, 2016 time analysis forms (Form CA7a) and timekeeping forms, that there was no work available within appellant’s medical
restrictions. The time analysis forms contained the following annotation: “The 04/1/15 job offer
was not rescinded.”
On January 6, 2016 appellant’s representative modified his request for a review of the
written record to one for reconsideration. Appellant contended that the employing establishment
withdrew her modified customer care agent position because of Dr. Thomas’ April 22, 2015 work
restrictions. She submitted additional evidence.
In a January 15 and 20, 2016 statements, appellant asserted that, when Supervisor T.P. sent
her home on May 6, 2015, he made her turn in her security card that allowed her entry to her work
station, and the headset she used to answer the telephone. She expressed willingness to resume
work within Dr. Thomas’ April 22, 2015 restrictions, including the 10-minute hourly break.
Appellant contended that on January 19, 2016 an employing establishment official explained that,
because she was sent out of the call center in May 2015, her position would have been filled
immediately, preventing her from returning to work.
The employing establishment contended in a March 8, 2016 letter that on May 7, 2015,
due to “the increase in restrictions,” appellant was “simply sent back to her original district to
provide clarification of her new alleged increase in restrictions and to submit the appropriate
paperwork for a possible recurrence.” The employing establishment explained that the new
restrictions appellant submitted on May 7, 2015 “provided an increase or worsening of her
condition,” placing management on notice that she was no longer able to perform the customer
care agent position. However, as Dr. Kaufman opined that appellant no longer required a 10minute hourly break, she could resume work as a modified customer care agent.
On March 28, 2016 the employing establishment offered appellant a modified city carrier
position, sorting bundles of mail. The physical duties included sitting and simple grasping.
7
By letter dated December 2, 2015, OWCP notified appellant that the customer care agent position offered to her
on April 3, 2015, which she performed through May 6, 2015, was suitable work within her medical restrictions, based
on the opinion of Dr. Kaufman. It advised appellant of the penalty provisions under FECA for refusing an offer of
suitable work. OWCP afforded appellant 30 days to submit additional evidence or argument as to why she could not
work as a modified customer care agent. In a January 21, 2016 letter, it rescinded the December 2, 2015 notice,
pending clarification of appellant’s work restrictions.

5

Appellant would have a 10-minute break each “hour for upper extremity.” She accepted the job
offer on March 28, 2016.
By decision dated April 5, 2016, OWCP denied modification of the July 17, 2015 decision,
finding that the additional evidence submitted on reconsideration did not establish that she was
disabled from performing the modified customer care agent position from May 7, 2015 onward
due to the accepted bilateral shoulder conditions. In reaching this determination, it noted that
appellant’s position “was removed” on May 7, 2015 because Dr. Thomas increased appellant’s
occupationally-related work restrictions as of April 22, 2015. OWCP went on to say, “However,
evidence of record proves that the claimant was in fact able to perform less restricted duties than
what Dr. Thomas actually recommended.” Additionally, it noted that the employing establishment
confirmed on December 18, 2015 that the position remained available to her since April 3, 2015.
OWCP accorded the special weight of the medical evidence to Dr. Kaufman as the impartial
medical examiner.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as “an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition
which has resulted from a previous injury or illness without an intervening injury or new exposure
to the work environment that caused the illness.”8
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden 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 light duty. 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 and extent of the light-duty job requirements.9 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the disabling condition is causally related to employment
factors and supports that conclusion with sound medical reasoning.10 An award of compensation
may not be based on surmise, conjecture, or speculation or on appellant’s unsupported belief of
causal relation.11
The term recurrence of disability also means an inability to work when a light-duty
assignment specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
8
20 CFR § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2.b
(June 2013). See also Philip L. Barnes, 55 ECAB 426 (2004).
9

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

10

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

11

Alfredo Rodriguez, 47 ECAB 437 (1996).

6

requirements of such an assignment are altered so that they exceed his or her established physical
limitations.12 It is appellant’s burden of proof to establish that light duty has, in fact, been
withdrawn.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing May 7, 2015.
OWCP accepted that appellant sustained bilateral shoulder conditions in the performance
of duty. It authorized arthroscopic right rotator cuff repair, performed on February 24, 2014 by
Dr. Thomas, an attending Board-certified orthopedic surgeon.
Appellant returned to modified duty on April 6, 2015 as a customer care agent, answering
telephones and using a computer keyboard and mouse. On April 22, 2015 Dr. Thomas prescribed
additional work restrictions, including a 10-minute rest break each hour.
On May 7, 2015 appellant advised Supervisor T.P. of her increased work restrictions
including the necessity of a 10-minute rest break. She asserted that T.P. then withdrew her
modified-duty position, confiscated her workplace identification badge, building security pass, and
telephone headset, and sent her home as she was no longer medically able to perform the job.
Appellant contended that an employing establishment official informed her that her modified
position terminated when she was ordered to leave the call center, as her job would have been
filled immediately.
Appellant filed a notice of recurrence (Form CA-2a) claiming disability commencing
May 7, 2015 while on modified duty. OWCP denied appellant’s claim for recurrence of disability
by decisions dated July 17, 2015 and April 5, 2016, finding that the medical evidence did not
establish total disability for work from May 7, 2015 onward.
In support of her claim, appellant reports dated from June 2 to July 14, 2015 from
Dr. Thomas, a Board-certified orthopedic surgeon, prescribing additional work restrictions.
Although he commented in a July 10, 2015 that these restrictions were “to avoid aggravation of
her injuries,” Dr. Thomas did not opine that appellant’s condition had worsened such that she could
no longer perform her modified customer care agent position.
Additionally, Dr. Kaufman, a Board-certified orthopedic surgeon and impartial medical
specialist, provided November 3, 2015 and February 3, 2016 reports, finding that appellant
remained physically able to perform her modified job. The Board therefore finds that the medical
evidence of record does not support a spontaneous worsening of the accepted conditions

12

20 CFR § 10.5(x).

13

J.F., 58 ECAB 124 (2006).

7

commencing May 7, 2015, such that appellant would not have been able to continue in her assigned
modified-duty position.14
The Board further finds that appellant did not meet her burden of proof to establish a
recurrence of disability based on the withdrawal of her modified position. The employing
establishment submitted a July 2, 2015 letter in which it confirmed that on May 7, 2015 Supervisor
T.P. ordered appellant to leave the call center due to the change in her work restrictions, and
referred her to her “home” district office to file a claim for recurrence of disability. In a March 8,
2016 letter, the employing establishment reiterated that on May 7, 2015 it sent her to a district
office to file a recurrence claim. However, there is no indication that the employing establishment
withdrew appellant’s modified position.
The employing establishment advised on appellant’s time analysis forms, as well as OWCP
directly that appellant’s job offer was not rescinded and had not been rescinded since
April 1, 2015. Also, the Board notes that the employing establishment explained that, effective
August 11, 2015, appellant would remain in her current modified assignment and schedule because
her original bid position had been withdrawn. This is persuasive evidence that the modified
customer care agent position remained open and available to appellant.
The Board notes that, while OWCP mentioned in its April 5, 2016 decision that appellant’s
light-duty position “was removed” effective May 7, 2015, it did not specify the evidence on which
it based this conclusion and there is no evidence of record to establish that the employing
establishment actually withdrew appellant’s light-duty position.
As noted above, it is appellant’s burden of proof to establish that the employing
establishment withdrew the modified position.15 In this case, the employing establishment’s letters
demonstrate that appellant was instructed to file a claim for recurrence of disability, but that her
modified job remained open and available to her. There is no indication that OWCP withdrew her
position. Therefore, appellant has not established a recurrence of disability in this respect.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability, commencing May 7, 2015, causally related to her accepted bilateral shoulder
conditions.

14

Ronald A. Eldridge, supra note 10.

15

J.F., supra note 13.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 5, 2016 is affirmed.16
Issued: August 2, 2018
Washington, DC

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

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

16
Colleen Duffy Kiko, Judge, participated in the preparation of the decision, but was no longer a member of the
Board after December 11, 2017.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
LOGISTICS CENTER, WARNER ROBINS AIR
FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 13-537
Issued: July 29, 2013

Case Submitted on the Record

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

JURISDICTION
On January 7, 2013 appellant filed a timely appeal from the July 16, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 26, 2010 appellant, then a 49-year-old executive support specialist, filed an
occupational disease claim alleging that she sustained an emotional condition due to her work.
She stated that on February 3, 2010 her “place of employment became a hostile environment.”
In support of her claim, appellant submitted an undated statement in which she indicated
that she was claiming the medical conditions of spiked blood pressure, panic, anxiety and
depression. She asserted that she was exposed to on-the-job stressors beginning on June 12,
2009 when her supervisor, Dana Stanley, gave her additional duties of quality and safety
timekeeping. Appellant indicated that, in August 2009, she had a dispute with Ms. Stanley and
Gregory Custer, another supervisor, about these additional duties but Ms. Stanley and Mr. Custer
responded that these additional duties were not permanent. She claimed that in August 2009
Ms. Stanley wrongly denied her compensatory time for a base-wide inspection. Appellant
indicated that she voiced concerns to Ms. Stanley and Mr. Custer about several employees who
indicated that they would not perform certain actions, but appellant asserted that these
supervisors did not adequately respond to her concerns. She claimed that on November 18, 2009
Mr. Custer harassed her by insisting she worked for him.
Appellant further alleged that on December 4, 2009 she had a conflict with Jennifer
Keister, a coworker, about a suspense action and that on December 8, 2009 Ms. Stanley began
verbally abusing her in front of Ms. Keister. Appellant alleged that on February 3, 2010 she had
an altercation with Ms. Stanley when she allowed Mr. Custer to assign work to appellant that
should have been assigned to Ms. Keister. Ms. Stanley allegedly stated in a raised voice and
offensive tone that, if appellant did not want to perform the assigned task, she would do it
herself. Appellant indicated that she then had an exchange with Ms. Stanley about a time card
and that when she wanted to go home due to a headache Ms. Stanley wanted to talk about work
matters. She indicated that she did not want to talk about work matters and Ms. Stanley stated,
“You will talk to me!” Appellant stated that she responded, “You don’t want to go there. We’ll
talk tomorrow.” She asserted that Carl Unholz improperly failed to accept an Equal
Employment Opportunity (EEO) complaint letter from her on April 30, 2010. Appellant claimed
that she was humiliated when another supervisor, Captain Phillip Edgar, took the letter out of
Mr. Unholz’ hands and “tossed it at her feet.”
In an undated statement, Ms. Stanley acknowledged talking to appellant about various
work assignments, including the occasion on February 3, 2010, but she denied ever speaking to
appellant in an abusive tone or otherwise subjecting her to harassment of discrimination. She
expressed her opinion that appellant overacted to a discussion of a work task on
February 3, 2010. Ms. Stanley indicated that, on July 9, 2010, appellant was sent a leavewithout-pay letter that was sent to all employees who had reached 100 hours of leave without
pay. She further indicated that there were no situations where appellant was called upon to do
duties other than her own.
In an April 30, 2010 memorandum, Mr. Unholz indicated that it was not proper for him
to accept appellant’s EEO complaint on April 30, 2010 because he was not the proper person to
accept such a complaint. He stated that he advised appellant to follow the proper chain of
command. In an undated statement, Captain Edgar acknowledged that he took the EEO

2

complaint letter from Mr. Unholz’ hands and set it down at appellant’s feet when she became
agitated and demanded that the letter be delivered to Major General Peyer. Captain Edgar did
not feel that it would have been appropriate to deliver the letter to Major General Peyer.
Appellant submitted numerous records from her EEO complaints and medical evidence
including reports from Dr. Yvonne McAllister, a Board-certified family practitioner, who opined
that appellant had uncontrolled hypertension, chest pain, palpitations, anxiety and depression
causally related to on-the-job stress.
In an October 26, 2010 decision, OWCP denied appellant’s emotional condition claim on
the grounds that she had not established any compensable employment factors. It found that she
had not established harassment, discrimination or wrongdoing with respect to administrative
matters.
Appellant requested a hearing with an OWCP hearing representative. At the hearing held
on April 7, 2011 she further discussed the incidents and conditions at work, which she believed
caused the emotional condition. After the hearing, appellant submitted a January 27, 2011
settlement agreement wherein she agreed to not institute a discrimination lawsuit against the
employing establishment and to withdraw her EEO complaints. The employing establishment
agreed to restore 144 hours of annual leave and 74 hours of sick leave to her, compensate her for
323 hours of leave without pay, change her 2010 performance rating from a three to a four rating
and pay attorney fees in the amount of $2,500.00. The agreement stated, “This [a]greement does
not constitute an admission by the [employing establishment] of any violation of the Civil Rights
Act of 1964, as amended….” After the hearing, appellant also submitted medical evidence
including reports dated between 2009 and 2011.
In a June 21, 2011 decision, the hearing representative affirmed OWCP’s October 26,
2010 decision denying appellant’s emotional condition, noting that she still had not established
any work factors. The hearing representative noted that the January 27, 2011 settlement
agreement explicitly did not find any wrongdoing by the employment establishment.
Appellant requested reconsideration of her claim and submitted copies of several
performance evaluations. She also resubmitted a number of documents which had previously
been in the record.
In a July 16, 2012 decision, OWCP affirmed its June 21, 2011 decision, noting that the
newly submitted evidence did not establish any compensable work factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.2 On the other hand, the
2

Lillian Cutler, 28 ECAB 125 (1976).

3

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.3
To the extent that disputes and incidents alleged as constituting harassment or
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.4
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.6 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.7
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.8
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which she believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

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

5

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

6

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

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

8

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

9

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

10

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

4

factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.12
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions at her workplace. OWCP denied her emotional condition
claim on the grounds that she did not establish any compensable employment factors. The Board
must, thus, initially 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 Culter.13 Rather,
appellant has alleged error and abuse in administrative matters and harassment on the part of
supervisors and coworkers.
Appellant claimed a number of work factors with regard to administrative or personnel
matters. She asserted that her supervisors, Ms. Stanley and Mr. Custer, assigned her unwanted
work duties beginning in June 2009 and including an incident on February 3, 2010. Appellant
also claimed that she was wrongly denied compensatory time in September 2010 and that
Mr. Unholz, another supervisor, improperly failed to accept an EEO complaint letter from her on
April 30, 2010.14 She indicated that she voiced concerns to Ms. Stanley and Mr. Custer about
several employees who indicated that they would not perform certain actions, but she asserted
that these supervisors did not adequately respond to her concerns. The Board notes that the
claimed instances related to administrative and personnel matters and would only be considered
work factors if they were established that management committed error or abuse with respect to
these matters. The employing establishment’s witnesses denied the fact as presented by
appellant. Appellant has not submitted evidence to establish her allegations that management
committed error or abuse with respect to administrative or personnel matters. She has not
submitted any agency grievance decision which finds error or abuse. The record does contain a
January 27, 2011 EEO complaint settlement agreement that concerns some of appellant’s
allegations, but the agreement made no finding of wrongdoing by the employing establishment.15
In the absence of evidence showing error or abuse, appellant has not established any
compensable work factors with respect to administrative and personnel matters.
11

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

12

Id.

13

See Cutler note 2.

14

Statements from Mr. Unholz and Captain Edgar indicate that it would not have been appropriate for
Mr. Unholz to accept the letter and that appellant became agitated and demanding during the incident.
15

Although the employing establishment agreed to restore leave and undertake other actions favorable to
appellant, the agreement stated, “This [a]greement does not constitute an admission by the [employing
establishment] of any violation of the Civil Rights Act of 1964, as amended….”

5

Appellant alleged that in late 2009 and on February 3, 2010 Ms. Stanley spoke to her in a
raised and offensive tone of voice. She claimed that on November 18, 2009 Mr. Custer harassed
her by insisting that she worked for him. Appellant further alleged that on December 4, 2009 she
had a conflict with Ms. Keister, a coworker, about a suspense action and that on December 8,
2009 Ms. Stanley began verbally abusing her in front of Ms. Keister. She claimed that
supervisors and coworkers made statements and engaged in actions which she believed
constituted harassment, but she provided no corroborating evidence, such as probative witness
statements, to establish that the statements actually were made or that the actions actually
occurred.16 Ms. Stanley denied speaking to appellant in a raised and offensive tone of voice and
there is no corroborative evidence of record supporting a finding that she did so. Allegations of
harassment must be supported by probative evidence and appellant has not submitted such
evidence in the present case. Therefore, appellant has not established any compensable work
factors with respect to the claimed harassment.
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

16

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

17

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

6

ORDER
IT IS HEREBY ORDERED THAT the July 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 29, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
NATIONAL GUARD BUREAU, Tucson, AZ,
Employer
__________________________________________

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

Docket No. 07-1656
Issued: December 3, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from the May 15, 2007 nonmerit decision
of the Office of Workers’ Compensation Programs, which denied his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review that denial.
Because he filed his appeal more than one year after the Office’s April 10, 2006 merit decision to
suspend his compensation, the Board has no jurisdiction to review the suspension.
ISSUE
The issue is whether the Office properly denied appellant’s March 25, 2007 request for
reconsideration.
FACTUAL HISTORY
On October 20, 2005 appellant, then a 45-year-old equipment repairer, sustained an
injury in the performance of duty when he inhaled dust and smoke while drilling and grinding.

The Office accepted his claim for an aggravation of extrinsic asthma and paid compensation for
disability.
In a decision dated April 10, 2006, the Office suspended appellant’s compensation under
5 U.S.C. § 8123(d). The Office found that he failed to attend a March 23, 2006 medical
examination directed by the Office and did not provide a valid reason.
On March 25, 2007 appellant completed an appeal request form indicating that he was
requesting reconsideration. The Office received this request on April 3, 2007. On the same date,
the Office received a memorandum and physical profile serial report indicating that appellant
was certified “medically disqualified for worldwide duty.”
In a decision dated May 15, 2007, the Office denied appellant’s request for
reconsideration. The Office found that the request was insufficient to warrant a review of the
merits of the case because appellant did not submit any new evidence relevant to the April 10,
2006 decision or argument for error. This appeal followed.
LEGAL PRECEDENT
The Office may review an award for or against compensation upon application by an
employee (or his or her representative) who receives an adverse decision. The employee shall
exercise this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the “application for reconsideration.”1 An application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.2
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.3
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.4

1

20 C.F.R. § 10.605.

2

Id. at § 10.607(a).

3

Id. at § 10.606.

4

Id. at § 10.608.

2

ANALYSIS
Appellant filed his March 25, 2007 request for reconsideration within one year of the
Office’s April 10, 2006 decision to suspend his compensation. The request is therefore timely.
It is insufficient to warrant a reopening of his case. Appellant simply indicated with a mark that
he was requesting reconsideration. He did not state the grounds upon which he was requesting
reconsideration and he submitted no relevant and pertinent new evidence to support his request.
Appellant gave no indication why he disagreed with the Office’s April 10, 2006 decision.
Evidence of his medical disqualification for worldwide duty, which the Office received the same
date as his request, has nothing to do with his refusal to submit to a medical examination as
directed by the Office.
Appellant’s March 25, 2007 request for reconsideration does not show that the Office
erroneously applied or interpreted a specific point of law in its April 10, 2006 decision, does not
advance a relevant legal argument not previously considered by the Office and contains no
relevant and pertinent new evidence not previously considered by the Office. Because his
request does not meet at least one of the standards for obtaining a merit review of his case, the
Board finds that the Office properly denied his request. Appellant is not entitled to a reopening
of his case.
CONCLUSION
The Board finds that the Office properly denied appellant’s March 25, 2007 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Anthony Reeves, Esq., for the appellant
No appearance, for the Director

Docket No. 09-1638
Issued: February 25, 2010

Oral Argument October 8, 2009

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

JURISDICTION
On June 22, 2009 appellant, through her attorney, filed a timely appeal from a January 6,
2009 merit decision 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 this case.
ISSUE
The issue is whether appellant established that she sustained a stress-related myocardial
infarction on February 6, 2008 in the performance of duty.
FACTUAL HISTORY
On April 15, 2008 appellant, then a 46-year-old cashier, filed a traumatic injury claim
alleging that on February 6, 2008 she sustained a heart attack after an argument with Arlene
Kayser, her supervisor. She stopped work on February 6, 2008.

In an accompanying statement, appellant related that she informed Ms. Kayser on
February 6, 2008 by telephone that she had overslept and would be late. When she arrived at
work she bandaged her injured thumb with special tape. Ms. Kayser asked appellant why she
came to work if her thumb was bothering her. In a raised voice she told appellant to stock items.
Ms. Kayser took appellant into her office and yelled that she was not doing her job and should
not help the customers with their trays and coffee. Appellant related:
“She told me I was too nice and that we didn’t need nice people in this world. I
told her that she was crazy and she was jealous of me. I’ve only been there a
short time and people like me. She then told me I was crazy and that I just needed
to keep my mouth shut. Just stock and cashier and stop being so nice. I asked her
to stop yelling at me because I started not feeling well. But she continued. She
told me that I never wiped down the counters, clean the coffee pots, this and that.
I asked her to stop. She told me to go home, that it was okay, and that I didn’t
need to come in tomorrow and for me to think about everything that we talked
about not needing nice people in this world (in a hateful tone). She finally opened
the door so I could get out.”
After she left Ms. Kayser’s office, appellant experienced difficulty breathing and went to
the hospital. She asserted that the incident with Ms. Kayser caused a myocardial infarction.
In a statement received by the Office on April 28, 2008, Ms. Kayser noted that she hired
appellant and two other employees in October 2007. She related that appellant did not believe
that she needed to help with cleaning or stocking items. When the time came for cleaning or
stocking, appellant would tell customers about her family problems. Ms. Kayser stated that on
February 6, 2008 appellant called her for the second time in a week to say that she had overslept.
When appellant got to work, she wrapped her finger up and then picked up a rag and waited for
someone to ring it out. Ms. Kayser told her to ring the rag out herself with gloves on. Appellant
replied that she could not get her finger wet. Ms. Kayser asked if she wanted to see a physician
but appellant declined. She told appellant not to stack muffins and pastries on top of each other
and to remove any extras. Ms. Kayser left to stock items. Appellant became angry and, using
profanity, told the other employees and customers that she did not care what Ms. Kayser thought
and was not coming to work the following day. Ms. Kayser asked appellant to come in her
office and told her that she was supposed to follow instructions. She told appellant that she did
not adequately clean the condiment table or the coffee drain. Ms. Kayser related that appellant,
in a raised voice, told her that she was jealous because she had a relationship with the customers
and employees. She asked if she was joking and told her that she could be polite but to stop
telling her personal problems at work. Ms. Kayser stated:
“Then it hit me what [appellant] said about me and I stood up and told her our
conversation was over, I then opened the door and looked at [her] and told her she
needed to go home and think [whether] she liked her job or wanted her job and to
call me later and let me know if she was coming back to work tomorrow.
[Appellant] said she needed to get her stuff so she could leave[;] I said okay.”

2

In an undated statement received April 28, 2008, Mary Anne Drake, a coworker, related
that on February 6, 2008 Ms. Kayser opened her office door and told appellant “that the
conversation was over and she needed to just go home and think about whether she liked her job
and to call and let her know if she was coming to work tomorrow. [Appellant] said she needed
to get her things and [Ms. Kayser] said okay.”1
In another undated statement, Toni Robinson, a coworker, related that on February 6,
2008 appellant came in late and complained that she should not have had to come to work.2
Appellant also told her customers about her problems. Ms. Robinson told Ms. Kayser about
appellant’s behavior.
In a statement dated May 14, 2008, appellant related that on February 6, 2008 Ms. Kayser
yelled that she was not doing her job.3 She went to Ms. Kayser office. Ms. Kayser told
appellant not to assist the customers with their trays. She instructed appellant to go home and
think about their conversation and informed her that she did not have to come in the following
day. Ms. Kayser also said that the world did not need nice people. Appellant related that she
experienced shortness of breath and went to the hospital.
Melba Everly, a customer, related that she saw Ms. Kayser yell at appellant and chastise
her for being nice to customers. She related that she had “never witnessed a supervisor treating
an employee in such an unpleasant manner in front of others before.” On May 6, 2008
Frank Delarmi, another customer, related that appellant’s supervisor “berated her in a demeaning
manner” for stating that she would bring him his meal.
By decision dated June 2, 2008, the Office denied appellant’s claim on the grounds that
she did not establish an injury as alleged.
On June 20, 2008 appellant requested a telephone hearing held on October 15, 2008. She
related that she was doing her job of “taking care of people” when Ms. Kayser yelled at her and
assigned her other tasks. Appellant spoke with her in her office about not stacking muffins on
top of each other. Ms. Kayser cursed and used profanity during the meeting, including calling
appellant a “fu_king idiot.” She told appellant not to carry out trays or coffee for the customers.
Ms. Kayser informed appellant that she should take a couple of days to “think about being nice”
and told her that the world did not need nice people. She also told appellant to get “the fu_k out”
of her office before she opened the door. Appellant related that she may have called her
Ms. Kayser a bitch but did not use any other profanity.

1

The record also contains a statement from Wendy Goldacker, Ms. Kayser’s daughter. Ms. Goldacker related
that she heard appellant yelling during the February 6, 2008 meeting.
2

Ms. Robinson indicated that she was describing an incident occurring on January 6, 2008; however, this appears
to be a typographical error.
3

In a report dated March 6, 2008, Dr. Robert L. Barrett opined that work stress “may have triggered the
myocardial infarction that she had.”

3

In a dated November 13, 2008 affidavit, Ms. Kayser asserted that appellant spoke to
coworkers and customers about personal problems.4 She told her not to stack muffins on top of
each other and she protested loudly. Ms. Kayser “let it go” and went back to work.
Ms. Robinson heard appellant stating that she was “not coming to work tomorrow because she is
sick and tired of Ms. Kayser’s sh_t.” Ms. Kayser talked to appellant in her office about their
differences. She stated:
“I told [appellant] that I had several concerns to include her talking to other
employees and customers and telling them her personal business and not
concentrating on accomplishing her work because she spent too much time
talking to other employees and customers. I also told her that as her supervisor I
expected her to do her job without questioning everything I say and complaining
to other employees.
“[Appellant] then started to raise her voice stating she did a good job and she
knew what the problem was. [She] stated I was jealous of her relationship with
the customers and I could not stand that everyone liked her because she was nice.
I told her it was ok to be nice and polite but, she needed to focus and do her job as
well and stop telling everyone about her personal problems.”
Ms. Kayser related that appellant began yelling at her in an aggressive manner. She
stated that she “told [appellant] this discussion was over and she was relieved of duty. I told her
she needed to go home and decide if this job was important to her and to call me later that day to
let me know if she would be at work tomorrow.”
On October 28, 2008 Gary R. Allison, a manager, maintained that appellant often spoke
of personal problems to others including customers. He indicated that he had never witnessed
Ms. Kayser swearing or yelling.
On October 30, 2008 the employing establishment controverted appellant’s claim, noting
that what she stated at the hearing differed from her initial statement. On November 20, 2008
appellant’s attorney argued that she was in the performance of duty when she sustained her
injury.
By decision dated January 6, 2009, the hearing representative affirmed the June 2, 2008
as modified. She noted that appellant did not maintain that Ms. Kayser cursed at her until the
hearing. The hearing representative found that she had not established a compensable work
factor.
On appeal, appellant’s attorney contends that the Office did not properly develop the
issue of whether Ms. Kayser used profanity or yelled at appellant. He noted that the employing
establishment did not specifically ask Ms. Kayser whether she called her a “fu_king idiot” or
whether she told her to go home and consider whether she wanted to remain in her job. The

4

The record contains a statement from a coworker who indicated that she had not witnessed Ms. Kayser yelling
or swearing at other employees or customers.

4

attorney also argues that discussing appellant’s work performance constitutes a compensable
employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.5 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.6
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.7 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.8
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.9
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
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.10 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.11 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.12 The primary reason for
5

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

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon.,
42 ECAB 556 (1991).
8

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

9

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

10

See Michael Ewanichak, 48 ECAB 364 (1997).

11

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

12

See James E. Norris, 52 ECAB 93 (2000).

5

requiring factual evidence from the claimant in support of his or 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.13
The Board has recognized the compensability of physical threats or verbal abuse in
certain circumstances. This does not imply, however, that every statement uttered in the
workplace will be covered under the Act.14 A raised voice in the course of a conversation does
not, in and of itself, warrant a finding of verbal abuse.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.16 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.17
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must,
therefore, initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of the Act.
Appellant attributed her myocardial infarction to harassment, verbal abuse and criticism
of her job performance by Ms. Kayser on February 6, 2008. In the statement accompanying her
claim, she related that Ms. Kayser yelled at her to stock items instead of doing her job as a
cashier. Ms. Kayser took appellant into her office and, in a raised voice, told her that she should
not assist customers with their trays and coffee. She maintained that appellant did not perform
her work duties like wiping the counters and cleaning coffee pots and complained that she was
too nice. Ms. Kayser told appellant to go home and that she needed to think about what they
talked about, including the fact that the world did not need nice people. At the telephone

13

Beverly R. Jones, 55 ECAB 411 (2004).

14

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

15

Karen K. Levene, 54 ECAB 671 (2003).

16

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

17

Id.

6

hearing, appellant asserted that Ms. Kayser called her a “fu_king idiot” and to get the “fu_k out”
of her office. She stated that she may have called her Ms. Kayser a “bitch.”
If disputes and incidents alleged as constituting harassment and discrimination by
supervisors and coworkers are established as occurring and arising from the employee’s
performance of her regular duties, these could constitute employment factors.18 The evidence,
however, must establish that the incidents of harassment or discrimination occurred as alleged to
give rise to a compensable disability under the Act.19 Additionally, verbal altercations and
difficult relationships with supervisors, when sufficiently detailed by the claimant and supported
by the record, may constitute factors of employment. This does not imply, however, that every
statement uttered in the workplace will give rise to coverage under the Act.20 In a statement
received April 28, 2008, Ms. Kayser related that appellant believed that she only had to work the
cash register and not stock items. Appellant also told customers about her family problems. On
February 6, 2008 she became angry after Ms. Kayser told her not to stack muffins and pastries
on top of each other. Using profanity, Ms. Kayser informed appellant’s coworkers and
customers that she did not care what her supervisor thought and was not coming to work the next
day. She took appellant to her office and told her to follow instructions. In a raised voice
appellant accused Ms. Kayser of being jealous of her relationship with the other employees and
customers. Ms. Kayser responded that appellant should stop telling everyone her personal
problems and to go home and think about whether she wanted to return to work the next day. In
a statement dated November 13, 2008, she related that appellant yelled in an aggressive manner
during the meeting.
Appellant has not shown how Ms. Kayser’s instructing her to stock items or calling her
into her office for a discussion about job performance constituted harassment. Further, she has
not submitted any evidence corroborating her contention that Ms. Kayser yelled and swore at her
during the February 6, 2008 meeting. Appellant submitted statements from two customers who
related that on an unspecified date Ms. Kayser yelled and berated her because she helped
customers. The issue, however, is whether Ms. Kayser verbally abused her on February 6, 2008.
Appellant has not factually established her allegations of verbal abuse by Ms. Kayser on
February 6, 2008 and thus has not established a compensable work factor.21
On appeal, appellant’s attorney contends that the Office erred in failing to further develop
whether Ms. Kayser yelled or used profanity in the February 6, 2008 meeting. He notes that
Ms. Kayser did not specifically deny that she called appellant a “fu_king idiot.” A raised voice
in the course of a conversation, however, does not, in and of itself, warrant a finding or verbal
abuse.22 Additionally, even if it were established that Ms. Kayser used an isolated vulgar
comment in the February 6, 2008 meeting, the record shows that appellant used profanity during
18

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

19

Id.

20

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

21

David S. Lee, 56 ECAB 602 (2005).

22

Karen K. Levene, supra note 15.

7

the exchange by calling her supervisor a “bitch.” Under such circumstances, the mere utterance
of an epithet which may engender offensive feelings in an employee does not sufficiently affect
the conditions of employment to constitute a compensable factor.23
Regarding Ms. Kayser’s criticism of appellant’s work during the February 6, 2008
meeting, the Board has characterized supervisory discussions of job performance and reprimands
as administrative or personnel matters of the employing establishment, which are covered only
when a showing of error or abuse is made.24 Appellant has not submitted evidence establishing
error or abuse by her supervisor in discussing her work performance on February 6, 2008.
Consequently, she has not shown a compensable work factor.
On appeal, appellant’s attorney contends that a discussion of work performance
constitutes a compensable work factor. Administrative or personnel matters, however, while
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 absent error or abuse.25
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.

23

Denis M. Dupor, 51 ECAB 482 (2000).

24

David C. Lindsey, Jr., 56 ECAB 263 (2005).

25

C.T., 60 ECAB ___ (Docket No. 08-2160, issued May 7, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 6, 2009 is affirmed.
Issued: February 25, 2010
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

9