United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1001
Issued: November 17, 2011

Case Submitted on the Record

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

JURISDICTION
On March 15, 2011 appellant filed a timely appeal from the February 17, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) reducing his compensation
based on a wage-earning capacity determination. Pursuant to the Federal Employees’
Compensation Act (FECA)1 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 OWCP met its burden of proof to reduce appellant’s compensation
effective February 12, 2011 based on its determination that the position of customer service
representative represented his wage-earning capacity.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on December 17, 2001 appellant, then a 36-year-old welder,
sustained a right shoulder sprain and impingement syndrome of the right shoulder after slipping
on a pressure hull inside a submarine at work. Appellant received OWCP compensation for
periods of disability.2
On January 3, 2002 appellant was treated by Dr. Mark Sugimoto, an attending Boardcertified family practitioner, who diagnosed right shoulder impingement, rotator cuff tendinitis
and subacromial bursitis. He was released to light-duty work.
In a February 25, 2002 report, Dr. Michael McManus, an attending Board-certified
occupational medicine physician, provided a diagnosis of a right shoulder strain and probable
rotator cuff tendinitis. On June 20, 2002 Dr. Robert W. Leyen, an attending Board-certified
orthopedic surgeon, performed right shoulder surgery, including a Neer acromioplasty with
excision of the distal clavicle, for a diagnosed condition of acromioclavicular joint arthritis
impingement syndrome. On January 22, 2004 Dr. Neil Roberts, an attending Board-certified
orthopedic surgeon, performed arthroscopy, debridement and mini open rotator cuff tear surgery
on appellant’s right shoulder. The surgical procedures were authorized by OWCP.
In an August 2, 2005 report, Dr. Patrick N. Bays, a Board-certified orthopedic surgeon
who served as an OWCP referral physician, opined that the conditions of right shoulder
impingement syndrome/strain, post status right shoulder open decompression with partial
claviculectomy status and post right shoulder arthroscopic decompression surgery were all
causally related to the December 17, 2001 employment injury. He found that appellant was not
totally disabled due to the accepted conditions.
In a March 11, 2008 report, Dr. Joan Sullivan, a Board-certified orthopedic surgeon who
served as an OWCP referral physician, stated that appellant suffered from bilateral shoulder
injuries as a result of his April 28, 1999 and December 17, 2001 work injuries. In a March 11,
2008 Form OWCP-5c, she advised that appellant could work eight hours per day but restricted
him from reaching for more than two hours per day, reaching above the shoulders for more than
one hour and pushing, pulling or lifting more than 25 pounds for more than four hours.
Dr. Sullivan stated that these restrictions were permanent. After reviewing the report of a
physical capacity evaluation conducted on March 12 and 13, 2008 by a physical therapist, she
submitted an April 14, 2008 report in which she indicated that her March 11, 2008 work
restrictions form would remain unchanged.
On June 18, 2008 appellant was referred for vocational rehabilitation services. In
September 2008 a vocational rehabilitation counselor determined that, based upon his
experience, education, medical restrictions and a labor market survey, appellant was employable
as a customer service representative or user support analyst. Labor market surveys showed that
these positions were reasonably available in appellant’s commuting area. The position of
customer service representative involved talking with customers by telephone or in person and
2

OWCP previously accepted that on April 28, 1999 appellant sustained a left shoulder impingement syndrome
and aggravation of left shoulder post-traumatic arthritis.

2

receiving orders for installation, turn-on, discontinuance, or change in service. The position was
considered sedentary in nature but the physical requirements of the position included
occasionally reaching, with the term occasionally defined as 1/3 of an 8-hour workday. The
physical duties also required occasional lifting of up to 20 pounds and frequent lifting of up to 10
pounds.
OWCP provided Dr. Sullivan with descriptions of the positions of customer service
representative and user support analyst. In an October 14, 2008 report, Dr. Sullivan stated that a
physical therapist’s recommendation that appellant only reach for two hours per day was in
accordance with her March 11, 2008 work restrictions. She stated:
“In talking about reaching, though, I was referring more to him reaching to do
activities that called for above-shoulder level work, either directly in front of him,
behind him, or out to the side. Reaching directly in front of him, below shoulderlevel work, should not be a cause of difficulty for him. The job description for a
customer service representative, as well as user support analyst, are both positions
for which I think he can accomplish the tasks and demands of the job and he is
able to physically perform those duties as were outlined in the job description.”
In a November 12, 2008 report, Dr. Roberts stated that he had a chance to review job
descriptions for the positions of customer service representative and user support analyst and
noted, “I do believe he could do these jobs, even involving the reaching.”
As part of his rehabilitation program, appellant took a course at Olympic College in order
to improve his computer skills. The primary goal was to have him work as a user support
analyst, with a secondary goal to have him work as a customer service representative.
Appellant’s counselor indicated that appellant put forth good effort but was struggling with his
coursework. Appellant eventually completed a less difficult computer training course at a
technical institute in mid 2010. However, he was not successful in finding an appropriate job
and his vocational rehabilitation file was closed in September 2010. Another labor market
survey was performed in September 2010 which confirmed that the position of customer service
representative was still available in appellant’s commuting area at an entry pay level of $425.03
per week. The physical requirements of the position remained the same. Appellant’s counselor
provided an opinion that appellant was vocationally able to work as a customer service
representative.
In a November 30, 2010 letter, OWCP advised appellant that it proposed to reduce his
compensation effective based on its determination that the position of customer service
representative represented his wage-earning capacity. It provided appellant 30 days to submit
evidence or argument challenging the proposed action.
Appellant submitted an October 21, 2010 report in which Dr. McManus stated that
physical examination of his right shoulder revealed a tender anterior humeral head about the
greater tuberosity and palpable crepitance with range of motion testing. Strength testing with
abduction, forward flexion and external rotation showed 4/5 strength. Dr. McManus diagnosed
right shoulder strain with impingement syndrome status post open acromioplasty and resection of
distal clavicle with subsequent arthroscopic procedure for rotator cuff tear. He indicated that

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appellant had permanent work restrictions per Dr. Sullivan and stated, “This provider agrees with
Dr. Sullivan’s work restrictions and permanent work restrictions rewritten at this time.” On
October 21, 2010 Dr. McManus completed a Form OWCP-5c in the same manner Dr. Sullivan
did on March 11, 2008 thereby indicating that appellant could work eight hours per day with
restrictions from reaching more than two hours per day, reaching above the shoulders for more
than one hour or pushing, pulling or lifting more than 25 pounds for more than four hours.
In a February 17, 2011 decision, OWCP reduced appellant’s compensation effective
February 12, 2011 based on its determination that the position of customer service representative
represented his wage-earning capacity.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.4
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.5
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.6 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.7 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his
commuting area.8
In determining wage-earning capacity based on a constructed position, consideration is
given to the residuals of the employment injury and the effects of conditions which preexisted

3

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

4

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

5

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

6

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

7

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
8

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

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the employment injury.9 In determining wage-earning capacity based on a constructed position,
consideration is not given to conditions which arise subsequent to the employment injury.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor, Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.11
ANALYSIS
OWCP accepted that on December 17, 2001 appellant sustained a right shoulder sprain
and impingement syndrome of the right shoulder and approved right shoulder surgeries that were
performed on June 20, 2002 and January 22, 2004. Appellant received OWCP compensation for
periods of disability.
In March 2008 OWCP received a report from Dr. Sullivan, a Board-certified orthopedic
surgeon who served as an OWCP referral physician, indicating that appellant could perform
light-duty work on full-time basis. In a March 11, 2008 Form OWCP-5c, Dr. Sullivan stated that
appellant could work eight hours per day but restricted him from reaching more than two hours
per day, reaching above the shoulder for more than one hour and pushing, pulling or lifting more
than 25 pounds for more than four hours. She stated that these restrictions were permanent.
In June 2008 appellant was referred to an OWCP-sponsored vocational rehabilitation
program. Appellant’s vocational rehabilitation counselor determined that appellant was able to
perform the position of customer service representative and that state employment services
showed the position was available in sufficient numbers so as to make it reasonably available
within appellant’s commuting area.12 The position of customer service representative involved
talking with customers by telephone or in person and receiving orders for installation, turn-on,
9

See Jess D. Todd, 34 ECAB 798, 804 (1983).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (December 1995).
11

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
12

Labor market surveys for the position were performed in September 2008 and September 2010. In an
October 14, 2008 report, Dr. Sullivan suggested that appellant might be able to reach more than two hours per day if
the reaching was below shoulder level and involved reaching towards his front (rather than to the side). Based on
this assumption, Dr. Sullivan indicated that appellant could work as a customer service representative. In a
November 12, 2008 report, Dr. Roberts, an attending Board-certified orthopedic surgeon, stated that appellant could
perform the customer service representative position.

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discontinuance, or change in service. The position was considered sedentary in nature but the
physical requirements of the position included occasionally reaching, with the term occasionally
defined as 1/3 of an 8-hour workday. The physical duties also required occasional lifting of up
to 20 pounds and frequent lifting of up to 10 pounds.
The Board notes that OWCP properly relied on the opinion of the rehabilitation counselor
that appellant was vocationally capable of performing the position of customer service
representative.
The Board finds, however, that the medical evidence of record does not show that
appellant was capable of physically performing the constructed customer service representative
position around the time that his compensation was reduced in early 2011. Therefore, OWCP
did not meet its burden of proof to reduce appellant’s compensation effective February 12, 2011
based on its determination that the position of customer service representative represented his
wage-earning capacity.
The only medical reports that contain an opinion on appellant’s ability to work around the
time that his compensation was reduced in early 2011 are the October 21, 2010 reports of
Dr. McManus, an attending Board-certified occupational medicine physician. In an October 21,
2010 narrative report, Dr. McManus indicated that appellant had permanent work restrictions per
Dr. Sullivan and stated, “This provider agrees with Dr. Sullivan’s work restrictions and
permanent work restrictions rewritten at this time.”13 On October 21, 2010 he completed a Form
OWCP-5c in the same manner Dr. Sullivan did on March 11, 2008 thereby indicating that
appellant could work eight hours per day with restrictions from reaching more than two hours
per day, reaching above the shoulders for more than one hour or pushing, pulling or lifting more
than 25 pounds for more than four hours.
The Board notes that Dr. McManus clearly restricted appellant to reaching only two
hours during an eight-hour workday, but the job description of the customer service
representative position provides that appellant would be required to occasionally engage in
reaching, with the term occasionally defined as 1/3 of an 8-hour workday. Reaching for 1/3 of
an 8-hour workday means that appellant would have to engage in reaching for more than 2½
hours per 8-hour workday and this requirement would violate appellant’s work restrictions.
OWCP has not clearly established that appellant could physically perform the customer service
representative position which it used to determine his wage-earning capacity and reduce his
compensation in early 2011.14 The decision will be reversed.

13

Dr. McManus stated that physical examination of appellant’s right shoulder revealed a tender anterior humeral
head about the greater tuberosity and palpable crepitance with range of motion testing. Strength testing with
abduction, forward flexion and external rotation showed 4/5 strength. He diagnosed right shoulder strain with
impingement syndrome status post open acromioplasty and resection of distal clavicle with subsequent arthroscopic
procedure for rotator cuff tear.
14

The Board notes that the 2008 reports of Dr. Sullivan and Dr. Roberts, which indicate that appellant would be
able to work as a customer service representative, do not describe appellant’s physical condition and ability to work
around the time his compensation was reduced in early 2011.

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CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation effective February 12, 2011 based on its determination that the position of
customer service representative represented his wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 12-1382
Issued: December 21, 2012

Case Submitted on the Record

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

JURISDICTION
On June 11, 2012 appellant filed a timely appeal of a May 2, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a low
back injury on October 29, 2011 in the performance of duty.
FACTUAL HISTORY
On October 29, 2011 appellant, then a 53-year-old automation clerk, filed a traumatic
injury claim for his low back after removing a tray from the stacker in the performance of duty.
The employing establishment provided him with an authorization for treatment on
1

5 U.S.C. § 8101 et seq.

October 29, 2011. Dr. Katherine L. Mitchell, an emergency physician, examined appellant on
October 29, 2011. She diagnosed acute back injury and recommended that he remain off work
through November 2, 2011 and seek treatment from his attending physician.
On October 29, 2011 appellant’s supervisor stated that appellant reported picking up a
tray of mail and experiencing lower back pain.
In a letter dated November 10, 2011, OWCP requested that appellant provide additional
factual and medical evidence in support of his claim. It allowed 30 days for a response.
Appellant submitted medical records from the Phoenix Veterans Administration Healthcare
System. On October 29, 2011 Dr. Mitchell obtained a history that appellant experienced a
sudden onset of acute severe low back pain while on duty. She stated, “[Appellant] states [that]
he was pivoting while carrying a mail tray and felt the sudden sharp pain in his lower back on the
evening of October 28, 2011. Dr. Mitchell diagnosed acute low back strain. In a November 10,
2011 note, Dr. Christopher T. Burke, a Board-certified internist, reported that appellant had a
recent flare up of his chronic low back pain. On June 4, 2011 a Dr. Vincent Tang noted that
appellant had a history of chronic back pain secondary to degenerative joint disease with an
acute exacerbation of his right lower back pain.
By decision dated December 15, 2011, OWCP denied appellant’s claim. It found that he
failed to submit sufficient rationalized medical opinion evidence to establish a causal relationship
between his diagnosed back strain and the October 29, 2011 employment incident.
Appellant requested reconsideration on February 1, 2012. He submitted a February 24,
2012 note from Dr. Burke, who listed that appellant sought treatment on October 29, 2011 due to
low back pain that began while he was at work. Appellant was diagnosed with acute low back
strain.
In a decision dated May 2, 2012, OWCP reviewed the merits of appellant’s claim and
found that he had not submitted sufficient medical evidence to establish that his diagnosed
condition was due to the lifting incident at work on October 29, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA
an injury was sustained in the performance of duty as alleged and that any disability or specific
condition for which compensation is claimed is causally related to the employment injury.3

2

5 U.S.C. §§ 8101-1893.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

2

These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 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. 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 employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7
ANALYSIS
OWCP accepted as factual that appellant, on October 29, 2011, lifted a tray of mail in the
performance of duty. Appellant sought treatment from Dr. Mitchell that day complaining of low
back pain. Dr. Mitchell noted his incident at work and diagnosed low back strain. She did not
offer an opinion on the causal relationship between appellant’s diagnosed condition and his
employment merely noting that he reported pain while moving a tray of mail. Dr. Mitchell’s
note is not sufficient to meet his burden of proof as she did not clearly attribute his condition to
his accepted employment incident and did not offer any medical reasoning in support of such an
attribution. The medical evidence in the record from Drs. Burke and Tang noted that appellant
had a history of degenerative joint disease of the spine and that he has frequent “flare-ups” of
this condition. Due to appellant’s preexisting condition, it is necessary for Dr. Mitchell to
address the preexisting history and any influencies on a new injury.
Appellant also submitted notes from Dr. Burke. In his November 10, 2011 note,
Dr. Burke reported that appellant had a recent flare up of his chronic low back pain. On
February 24, 2012 he stated that appellant sought treatment on October 29, 2011 due to low back
pain that began while he was at work. Dr. Burke diagnosed with acute low back strain. While
these notes include a mention of appellant’s employment incident on October 29, 2011 Dr. Burke
did not provide a clear statement that he believed that the October 29, 2011 lifting incident
resulted in appellant’s low back condition. Dr. Burke noted that appellant had chronic low back
pain and suggested that his condition was a flare up of this preexisting condition rather than a
new injury. Without a clear opinion on the causal relationship between appellant back condition
and his employment incident, these notes are not sufficient to meet appellant’s burden of proof.

4

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

5

20 C.F.R. § 10.5(ee).

6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that he sustained a traumatic back injury in the performance of duty on
October 29, 2011.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2012 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: December 21, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
DEPARTMENT OF THE ARMY, TACOM
FLEET MANAGEMENT EXPANSION,
Fort Leonard Wood, MO, Employer
__________________________________________

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

Docket No. 20-1590
Issued: May 12, 2021

Case Submitted on the Record

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

JURISDICTION
On September 4, 2020 appellant, through counsel, filed a timely appeal from a June 30,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish binaural hearing
loss causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On November 8, 2017 appellant, then a 58-year-old tool and parts attendant, filed an
occupational disease claim (Form CA-2) alleging that she developed hearing loss due to factors of
her federal employment, including working in a mechanic wheel shop with loud noises from trucks
and air tools. She noted that she first became aware of her condition and its relation to her federal
employment on November 20, 2012. Appellant did not stop work.
In a development letter dated November 15, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the type of factual and
medical evidence needed and provided a questionnaire for her completion. In a separate
development letter of even date, OWCP requested that the employing establishment provide
additional information, including comments from a knowledgeable supervisor and an explanation
of appellant’s work activities and exposure to noise. It also requested all medical examinations
pertaining to hearing or ear problems, including pre-employment examination and all audiograms.
OWCP afforded both parties 30 days to submit the necessary evidence.
OWCP subsequently received base system civilian evaluation reports, position
descriptions, and notifications of personnel action Standard Form (SF)-50 that noted appellant’s
employment history and job duties as a custodial worker from May 26, 1998 through July 31,
1999, a fabric worker from August 1, 1999 through April 5, 2003, a custodial worker from April 6
through June 28, 2003, a sewing machine operator from June 29, 2003 through July 10, 2005, a
tool and parts attendant from July 11 through December 10, 2005, an optical instrument worker
from December 11, 2005 through September 24, 2011, and a tool and parts attendant from
September 25, 2011 through the present.
Appellant submitted her audiogram findings and hearing conservation data, dated March 2,
2012 through November 2, 2017. Audiograms, dated November 5, 2012, October 21, 2014, and
October 20 and November 1, 2017, revealed changes in appellant’s hearing when compared to her
baseline audiogram such that it constituted reportable sensorineural hearing loss.
On December 5, 2017 appellant responded to OWCP’s development questionnaire. She
noted that she was exposed to noise from heavy military vehicles for 9 hours per day, 40 hours per
week while working as a tool and parts attendant. Appellant indicated that she used triple-flange,
rubber hearing protection. She noted that she was last exposed to hazardous noise in 2014 and
first became aware of her hearing loss in 2012. Appellant indicated that she did not engage in any
hobbies that involved exposure to loud noise. She recounted that she requested her medical hearing
examinations from the employing establishment, but could only get records from 2012 through
2017. Appellant indicated that she had been moved to a different work site and no longer had
significant exposure to noise.

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In a December 5, 2017 email, J.S., appellant’s supervisor, responded to OWCP’s
development questionnaire. He noted that appellant received an annual hearing test on
November 7, 2012, which showed reportable hearing loss. J.S. indicated that appellant did not
want to file an occupational disease claim at that time. He reported that appellant was exposed to
noise from shop tools and military vehicles weighing up to 5 tons for 6.5 to 7.5 hours per day, 4
to 5 days per week. J.S. noted that appellant was provided with triple-flange ear protection. He
indicated that appellant’s audiograms and medical examinations pertaining to hearing or ear
problems would have to be provided by the employing establishment’s hearing program manager’s
office. J.S. stated that appellant was currently working as a tool and parts attendant for the
employing establishment.
In a December 15, 2017 memorandum, the employing establishment noted that it
conducted a noise test in the tool supply room where appellant had worked. It indicated that air
ratchets and impact air wrenches had been shown to have noise levels over 90 A-weighted decibels
(dBs). The employing establishment explained that if employees in the tool supply room entered
the maintenance area where these tools were used, hearing protection was required. It reported
that noise levels in the tool supply room were well below the allowable standard and therefore no
hearing protection was required. The employing establishment provided a table showing noise
levels in the tool supply room at different frequencies with work ongoing and an air compressor
running in an adjacent room.
On September 5, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for a second opinion examination with Dr. Richard L. Barnes, an otolaryngologist. In a
September 25, 2018 report, Dr. Barnes recounted appellant’s medical history and history of
employment-related noise exposure. He indicated that in reviewing appellant’s medical record,
there were no previous audiograms for comparison. Dr. Barnes examined appellant and performed
an audiological evaluation. He reviewed appellant’s audiogram performed that day, which
demonstrated at 500, 1,000, 2,000, and 3,000 Hertz (Hz) losses of 40, 40, 55, and 80 dBs on the
right, respectively and 40, 40, 70, and 80 dBs on the left, respectively. Dr. Barnes diagnosed
sensorineural hearing loss, but opined that he could not determine if it was related to appellant’s
federal employment. He noted that appellant’s hearing loss appeared to be functional and that the
September 25, 2018 audiometric testing was not valid because there were signs of malingering.
Dr. Barnes further explained that previous audiograms were needed to determine if appellant’s
hearing loss was caused by her federal employment. Utilizing the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 he
indicated that appellant had two percent impairment for tinnitus.
By decision dated November 16, 2018, OWCP denied appellant’s claim, finding that she
had not submitted medical evidence containing a medical diagnosis in connection with the
accepted factors of her federal employment. It concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.

3

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

3

On December 17, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. On February 1, 2019 she requested a review of the
written record in lieu of an oral hearing.
By decision dated April 2, 2019, an OWCP hearing representative, following a preliminary
review, vacated the November 16, 2018 decision and remanded the case for a new second opinion
examination with an otolaryngologist to determine if appellant had employment-related hearing
loss.
On June 25, 2019 OWCP referred appellant, along with an updated SOAF, for a second
opinion examination with Dr. Jay A. Dunfield, a Board-certified otolaryngologist. In a July 17,
2019 report, Dr. Dunfield noted that appellant’s hearing tests appeared to be stable going back to
2014. He indicated that appellant stated that she had audiograms performed from 1999 through
the present, but he did not receive any audiology records prior to 2012. Dr. Dunfield examined
appellant and performed an audiological evaluation. He reviewed appellant’s audiogram
performed that day, which demonstrated at 500, 1,000, 2,000, and 3,000 Hz losses of 30, 35, 55,
and 70 dBs on the right, respectively and 25, 40, 65, and 75 dBs on the left, respectively.
Dr. Dunfield diagnosed sensorineural hearing loss and opined that appellant’s hearing loss could
have been caused by her employment-related noise exposure. He noted that since there were no
audiograms prior to 2012, he could not determine if appellant’s hearing loss predated her federal
employment and would have to assume that it did not. Utilizing the sixth edition of the A.M.A.,
Guides, Dr. Dunfield calculated that appellant had 35 percent monaural hearing loss in the right
ear and 39 percent monaural hearing loss in the left ear. He calculated appellant’s binaural hearing
loss and added 1 percent impairment for tinnitus for a total of 37 percent binaural hearing loss.
By decision dated June 30, 2020, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
binaural hearing loss and the accepted factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

4

Supra note 2.

5
A.D., Docket No. 20-0758 (issued January 11, 2021); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10
ANALYSIS
The Board finds that this case is not in posture for decision.
In a July 17, 2019 report, Dr. Dunfield, the second opinion examiner, diagnosed binaural
sensorineural hearing loss and opined that appellant’s hearing loss could have been caused by her
employment-related noise exposure. He noted that appellant stated that she had audiograms
performed from 1999 through the present. Dr. Dunfield reported that since he did not receive
audiograms prior to 2012, he could not determine if appellant’s hearing loss was causally related
to her employment-related noise exposure.
In a development letter dated November 15, 2017, OWCP requested that the employing
establishment address the accuracy of appellant’s allegations and describe her workplace exposure
to hazardous noise. It specifically requested that the employing establishment provide detailed
information, including all medical examinations pertaining to hearing or ear problems, including
pre-employment examination and all audiograms.

6

V.P., Docket No. 20-0415 (issued July 30, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7
20 C.F.R. § 10.115; S.A., Docket No. 20-0458 (issued July 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

See B.H., Docket No. 18-1693 (issued July 20, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
9

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

5

In a December 5, 2017 e-mail, J.S., appellant’s supervisor, indicated that appellant’s
audiograms and medical examinations pertaining to hearing or ear problems would have to be
provided by the employing establishment’s hearing program manager’s office.
In a December 5, 2017 statement, appellant asserted that she requested her medical hearing
examinations from the employing establishment, but could only get records from 2012 to 2017.
The employing establishment did not provide the audiograms or medical records from its
hearing conservation program prior to 2012.
The Board finds that OWCP must further develop the factual aspect of this record. The
record reflects that appellant participated in the employing establishment’s hearing conservation
program. However, audiological and other medical records from that program were not provided
by the employing establishment. Dr. Dunfield specifically noted that audiograms were not
provided prior to 2012 and that he, therefore, could not determine if appellant’s hearing loss was
causally related to her employment-related noise exposure. Accordingly, OWCP must develop
this factual aspect of the case before a full and fair determination can be made regarding causal
relationship.11
It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden to establish entitlement to compensation, OWCP 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.12 OWCP has an
obligation to see that justice is done.13 On remand it shall obtain all relevant records from the
employing establishment’s hearing conservation program and provide the records it obtains to
Dr. Dunfield for a supplemental report.14 Following this and other such further development
deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

See D.O., Docket No. 20-0006 (issued September 9, 2020); J.V., Docket No. 17-0973 (issued July 19, 2018).

12

See D.O., id., R.A., Docket No. 17-1030 (issued April 16, 2018); Walter A. Fundinger, Jr., 37 ECAB 200, 204
(1985); Michael Gallo, 29 ECAB 159, 161 (1978).
13

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).
14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4, 2.800.7,
2.800.8, and 2.800.10 (June 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2020 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: May 12, 2021
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 10-142
Issued: August 13, 2010

Case Submitted on the Record

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

JURISDICTION

On October 19, 2009 appellant filed a timely appeal from a June 8, 2009 decision of the
Office of Workers’ Compensation Programs which denied merit review. Because more than 180
days has elapsed since the most recent merit decision dated May 29, 2008 and the filing of this
appeal on October 19, 2009, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On July 12, 2005 appellant, then a 49-year-old production machinery mechanic, filed a
traumatic injury claim alleging that he sustained injuries to his shoulders, collar bone and ribs
after being pinned between two man lifts. He stopped work on July 12, 2005 and returned to a
light-duty position four hours per day on October 12, 2005 and full-time work with restrictions

on August 13, 2006.1 The Office accepted the claim for bilateral shoulder clavicle fractures,
bilateral scapula fractures, fracture of the ribs, multiple abrasions and aggravation of C5-6
retrolisthesis.
Appellant came under the treatment of Dr. Thomas Higgins, a Board-certified orthopedic
surgeon, who on July 13, 2005 performed an open reduction, internal fixation of the right
clavicle and closed treatment with manipulation of the right scapula. Dr. Higgins diagnosed
multiple chest trauma with pulmonary contusions and bilateral flailed segments, right floating
shoulder with displaced shortened clavicle fracture and displaced shortened scapular fracture
with severely shortened right forequarter. On July 14, 2005 he performed closed treatment of the
left clavicle fracture and left scapular fracture and diagnosed multiple trauma to the chest and
bilateral shoulders, left medial clavicle and left scapular fracture. In later reports, Dr. Higgins
noted that appellant was progressing well postoperatively but had right shoulder weakness and
reduced range of motion.
On August 2, 2006 appellant filed a claim for a schedule award. He submitted a July 21,
2006 report from Dr. Brian H. Morgan, Board-certified in physical medicine and rehabilitation,
who opined that appellant had eight percent impairment of the right upper extremity in
accordance with the American Medical Association, Guides to the Evaluation of Permanent
Impairment,2 (A.M.A., Guides). On August 7, 2006 an Office medical adviser concurred with
Dr. Morgan’s impairment determination.
In an August 15, 2006 decision, the Office granted appellant a schedule award for eight
percent permanent impairment of the right upper extremity. The period of the award was from
July 21, 2006 to January 11, 2007.
On September 1, 2006 appellant requested an oral hearing which was held on
January 5, 2007. He submitted reports from Dr. Higgins dated January 17, 2006 to January 29,
2007, who recommended a functional capacity evaluation to determine impairment of the right
upper extremity. On January 30, 2007 appellant underwent a functional capacity evaluation
which revealed limited range of motion of the glenohumeral as well as deformity and lack of
movement in the scapular and collarbone.
On March 20, 2007 the hearing representative affirmed the Office decision dated
August 15, 2006.
On November 19, 2007 appellant requested reconsideration. He submitted reports from
Dr. Higgins dated February 28 and October 30, 2007, who opined that appellant sustained a 23
percent impairment of the right upper extremity in accordance with the A.M.A., Guides.

1

In a June 21, 2007 decision, the Office reduced appellant’s wage-loss compensation to zero upon finding that his
actual earnings as a full-time maintenance mechanic supervisor fairly and reasonably represented his wage-earning
capacity.
2

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

2

On April 15, 2008 the Office referred Dr. Higgin’s report and the case record to the
Office’s medical adviser who opined that appellant had eight percent permanent impairment of
the right upper extremity as previously determined.
In a decision dated May 29, 2008, the Office denied modification of the prior decision.
In an appeal form dated May 22, 2009, appellant requested reconsideration.
In a June 8, 2009 decision, the Office denied appellant’s reconsideration request on the
grounds that his request neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Act,3 the Office has the discretion to reopen a case for
review on the merits. It must exercise this discretion in accordance with the guidelines set forth
in section 10.606(b)(2) of the implementing federal regulations,4 which provide that a claimant
may obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
Appellant’s May 22, 2009 request for reconsideration consisted of an appeal request form
in which he placed an “x” next to the word “reconsideration” and provided no explanation as to
why he believed that his claim warranted further review by the Office. He submitted new
medical evidence regarding the underlying issue in his claim, permanent impairment of his right
arm.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id. at § 10.608(b).

3

As appellant did not show that the Office erroneously applied or interpreted a point of
law, did not advance a point of law or fact not previously considered by the Office, and did not
submit relevant and pertinent new evidence not previously considered by the Office, the Board
finds that the Office properly determined that appellant is not entitled to a review of the merits of
his claim. The Office properly denied his May 22, 2009 request for reconsideration.
On appeal, appellant asserts that his schedule award was based solely on the movement
of his arm. He disputed the Office’s reasoning in denying his claim for an additional schedule
award asserting that the loss of strength in his arm should be considered in determining
permanent impairment. The Board notes, however, that it does not have jurisdiction over the
question of whether the Office properly rated appellant’s permanent impairment. The Board
only has jurisdiction over whether the Office properly denied a merit review of the claim. As
explained, appellant did not submit any evidence or argument in support of his reconsideration
request that warrants reopening of his claim for a merit review under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
San Clemente, CA, Employer
__________________________________________

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

Docket No. 18-1503
Issued: May 2, 2019

Case Submitted on the Record

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

JURISDICTION
On August 1, 2018 appellant filed a timely appeal from a March 15, 2018 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 has met his burden of proof to establish an injury causally
related to the accepted August 21, 2016 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 24, 2016 appellant, then a 47-year-old supervisory border patrol agent, filed a
traumatic injury claim (Form CA-1) alleging that on August 21, 2016 he developed low back pain
after exercising in the gym while in the performance of duty. He did not stop work.
In Emergency Department Aftercare Instructions dated August 21, 2016, Dr. Dino N.
Barhoum, a specialist in emergency medicine, diagnosed right flank and back pain.
On August 21, 2016 Dr. Ronald MacCormick, an emergency medicine specialist, noted an
injury date of August 20, 2016 and diagnosed low back and acute abdomen pain.
An August 21, 2016 computerized tomography (CT) scan revealed no acute lumbar
abnormality, L5-S1 severe degenerative disease changes, low density upper pole left kidney cyst,
L5-S1 moderately severe bilateral foraminal stenosis, and several subacute 7th to 10th healing right
rib fractures.
In an August 21, 2016 report, Dr. Barhoum reported that appellant was seen in the
emergency room for complaints of left flank and back pain. Appellant related that the pain began
while he was exercising using kettle balls. In addition to the pain, he experienced nausea and
vomiting. Physical examination findings included pain on palpation of the lumbar spine and left
hip, able to move extremities, 5/5 bilateral leg strength, and sensory intact to light touch. A review
of a CT scan revealed no acute fracture, dislocation, spondylolisthesis, or scoliosis. Dr. Barhoum
opined that there was an “unclear etiology, however, presumed musculoskeletal, since [appellant]
was doing exercise with a kettlebell at the time.” Additionally, he diagnosed hypertension
presumed due to pain, and acute lumbar and flank pain.
By development letter dated March 9, 2017, OWCP noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal or no lost time from work and the claim was
administratively handled to allow a limited amount of medical payments. However, his claim was
now being reopened as his medical bills have exceeded $1,500.00. OWCP informed appellant of
the type of medical evidence needed to establish his claim and afforded him 30 days to submit the
necessary evidence. No additional evidence was received.
By decision dated April 12, 2017, OWCP denied appellant’s claim, finding that the medical
evidence failed to contain a definitive diagnosis, as pain is considered a symptom and not a
diagnosis.
On July 17, 2017 appellant requested reconsideration. In support of his request he
submitted two witness statements and resubmitted Dr. Barhoum’s April 21, 2016 report.
By decision dated March 18, 2018, OWCP denied modification of its prior decision,
finding that the evidence submitted was insufficient to establish a diagnosed medical condition
causally related to the accepted August 21, 2016 employment incident. It concluded, therefore,
that the requirements have not been met to establish an injury as defined by FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period,2 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury.6
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted August 21, 2016 employment incident.
On the date of injury, appellant sought emergency medical treatment. Dr. Barhoum noted
an “unclear etiology, however, presumed musculoskeletal, since [appellant] was doing exercise
with a kettlebell at the time.” Moreover, he reported that a CT scan revealed no abnormality.
Regarding causal relationship, Dr. Barhoum related that etiology of appellant’s conditions were
unknown. The Board has held that medical opinions that are speculative or equivocal in character

2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

7

S.S., Docket No. 18-1488 (issued March 11, 2019).

3

are of diminished probative value and as such these reports are insufficient to establish that
appellant sustained a traumatic injury.8
The remaining medical evidence is also insufficient to establish appellant’s claim. In his
August 21, 2016 report, Dr. MacCormick, similarly noted low back and acute abdominal pain, but
failed to establish a medical diagnosis in connection with the accepted August 21, 2016
employment incident because pain, as noted above, is a symptom and not a specific medical
diagnosis.9 Therefore, this report also lacks probative value.
The record also contains an August 21, 2016 CT scan. This scan did note diagnoses of L5S1 severe degenerative disc changes, left kidney cyst, L5-S1 moderately severe bilateral foraminal
stenosis, and several acute 7th to 10th healing right rib fractures. The Board has held, however, that
diagnostic testing reports lack probative value as they do not provide an opinion regarding the
cause of the diagnosed conditions.10 Therefore, this August 21, 2016 diagnostic report is
insufficient to establish causal relationship as it does not provide an opinion on causal relationship.
As the medical evidence of record fails to establish an injury causally related to the
accepted August 21, 2016 employment incident, the Board finds that appellant has not met his
burden of proof.
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 his burden of proof to establish an injury
causally related to the accepted August 21, 2016 employment incident.

8

See D.R., Docket No. 17-0971 (issued October 5, 2017); D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55
ECAB 206 (2004). J.P., Docket No. 14-0087 (issued March 14, 2014).
9

See K.V., Docket No. 18-0723 (issued November 9, 2018); C.F., Docket No 08-1102 (issued October 10, 2008);
Robert Broome, 55 ECAB 339 (2004).
10

S.H., Docket No. 17-1447 (issued January 11, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, RICHMOND
PROCESSING & DISTRIBUTION CENTER,
Sandston, VA, Employer
__________________________________________

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

Docket No. 16-1443
Issued: February 23, 2017

Case Submitted on the Record

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

JURISDICTION
On July 5, 2016 appellant filed a timely appeal from a February 22, 2016 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.
ISSUES
The issues are: (1) whether an OWCP hearing representative properly denied appellant’s
request for subpoenas; and (2) whether appellant met his burden of proof to establish an
emotional condition in the performance of duty.
On appeal appellant alleges that his physician related that his mental disorder was due to
abusive working conditions and that subpoenas were needed to demonstrate perjury by postal
officials.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 30, 2013 appellant, then a 56-year-old supervisor of maintenance operations
(SMO), filed an occupational disease claim (Form CA-2) alleging that working alone on
weekends and at night with an understaffed, unqualified, and untrained workforce caused workrelated stress and anxiety disorders. He first became aware of his condition on May 14, 2013
and realized its relationship to his employment on May 28, 2013. Appellant’s regular work
hours on Tour 1 were from 9:45 p.m. to 6:45 a.m. Sunday through Thursday. In an attached
statement he related that over the period January 14 to February 24, 2013 he was the only
supervisor on Tour 1 over the weekend when he averaged 10.5 hours daily, without a lunch
break, and that he also worked long hours during the regular workweek. Appellant indicated that
he had similar work-related stress in 2005.
In June 28, 2013 correspondence, OWCP informed appellant of the evidence needed to
support his claim. In a July 24, 2013 statement, appellant maintained that his facility was
understaffed, especially on weekends. This caused an anxiety disorder, panic attacks, bipolar,
and post-traumatic stress disorder (PTSD) when he was the only maintenance manager on
Tour 1. Appellant asserted that the type of radio he had to use for communication caused further
stress. He noted that while other supervisors were assigned to Tour 1, they took leave on
weekends, and he had to work alone when only untrained mechanics and technicians were
scheduled. Appellant indicated that he first noticed his anxiety condition in February 2013 when
he unintentionally skinned his knuckles on a toolbox by shadow boxing to demonstrate to an
unqualified electronic technician that he was fighting to have him trained to troubleshoot/repair
equipment. He described symptoms of nervousness, racing thoughts, rapid heart rate, insomnia,
increased blood pressure, increased sweating, and depression, in addition to knee pain and
headaches. These ailments began in March 2011 when appellant passed out at home and had to
go to the emergency room. He advised that in 2005 he sought psychiatric help for work-related
anxiety and PTSD, and was hospitalized from July 14 to 20, 2013 for a mental breakdown.
Appellant attached correspondence from the employing establishment. This included a
March 1, 2013 memorandum in which L.H., lead manager of distribution operations, notified
appellant that the plant manager had been contacted regarding an investigation about an incident
in which appellant threatened violence and punched a toolbox, causing his knuckles to bleed.
Appellant was instructed not to come onto postal property until further notice, and was scheduled
for psychological testing and a psychiatric fitness-for-duty evaluation.
In a March 27, 2013 report, Edward A. Peck, III, Ph.D., noted performing psychological
testing. Appellant had a history of service-related knee and head injuries. Following testing,
Dr. Peck noted that there was a consistent pattern of reporting from others which indicated that
there was an elevated probability that appellant displayed mental health and/or behavioral issues
which could lead to an increased potential for disruption in the workplace. He advised that
appellant should not return to work due to this threat potential.
In May 2013, the employing establishment referred appellant to the District Reasonable
Accommodation Committee (DRAC) to consider if accommodation of his medical condition was
appropriate. The record also includes evidence about an investigation and his subsequent
removal for the toolbox incident and other incidents when he allegedly threatened acts of

2

violence and made comments about shooting or killing. This included a May 24, 2013 notice of
enforced leave that described a postal inspector interview with appellant. The enforced leave
was finalized on July 25, 2013.
In a May 30, 2013 report, Dr. Shireesha Narla, a Board-certified internist, diagnosed
hypertension, diabetes, hyperlipidemia, generalized anxiety disorder, and possible PTSD. She
indicated that a mental health clinic should assess appellant’s needs for his psychiatric disorders,
and that his medical diagnoses required monitoring and medication.
In a report dated July 24, 2013, Dr. Lajuana M. Collins-Morgan, a Board-certified
psychiatrist, noted that appellant was hospitalized from July 15 to 20, 2013. She diagnosed
bipolar disorder, generalized anxiety disorder, PTSD (provisional), prescribed medication, and
advised that he had been incapacitated since February 23, 2013.2
By letter dated August 8, 2013, OWCP asked the employing establishment to comment
on appellant’s claim. In a response dated August 26, 2013, R.C., manager of maintenance
operations, indicated that appellant claimed an anxiety disorder after being removed from service
for egregious misconduct. He reported that a fitness-for-duty examination revealed that
appellant was unable to supervisor employees and could no longer work at the employing
establishment. R.C. further indicated that appellant had been investigated by the postal
inspection service due to threats of violence. He continued that appellant had been offered
reasonable accommodation and explained that his job duties did not vary from the official SMO
job description, noting that the SMO was responsible for scheduling employees to work,
including overtime, and was to follow-up when employees did not report for duty. A description
of appellant’s job duties was attached. On August 15, 2013 R.C. noted that he had supervised
appellant for less than one year.
By decision dated December 4, 2013, OWCP denied the claim, finding that appellant had
failed to establish a compensable factor of employment. Appellant timely requested a hearing
before OWCP’s Branch of Hearings and Review.
Appellant submitted evidence previously of record and an SMO position description.3
A report from the postal inspection service dated February 28, 2013 described the events
that led to appellant’s removal. This included a February 24, 2013 interview with appellant and
a number of reports of interviews with employing establishment staff regarding the toolbox
incident and alleged threats made by him.
In an undated report, Dr. Suresh Gharse, a psychiatrist, who provided a fitness-for-duty
examination, noted appellant’s 2005 psychiatric history. He advised that appellant was stressed
2

Appellant also submitted information regarding his 2005 psychiatric diagnosis. A claim filed on September 16,
2005, adjudicated by OWCP under File No. xxxxxx809, was denied by decision dated July 20, 2006. The instant
case was adjudicated under File No. xxxxxx865.
3

Appellant also submitted reports regarding his 2005 psychiatric condition, a Department of Veterans Affairs
rating decision dated September 23, 1997 awarding appellant 10 percent disability for facial scars and 10 percent for
hypertension, and his preemployment medical examination dated December 8, 1997.

3

because he felt that he was always short-staffed and had to run around to get work done, which
was beyond his capacity. Dr. Gharse maintained that appellant was losing control, which was
compromising his ability to deal with work in a rational manner and needed to be transferred to
another area with less stress. He diagnosed adjustment disorder with anxiety and possible mood
or bipolar disorder. Dr. Gharse advised that appellant was not fit to work at the current location
and that he did not pose a clear and direct threat to an identifiable target. The record also
contained additional reports from Dr. Collins-Morgan.
Appellant also submitted documentation of his clock rings from January 26 through
September 4, 2013.
At the hearing, held on August 12, 2014, appellant testified about work conditions. He
stated that for most of the two years he worked as Tour 1 SMO. Appellant worked alone and had
to handle mail processing equipment, supervise technicians, and perform administrative and
disciplinary duties. He indicated that the facility was understaffed, noting that, in addition to
Richmond area mail, Norfolk mail was added. Appellant maintained that his staff of
approximately 20 was undertrained and not qualified to do the required work, which caused
frustration and anger. He advised that he received treatment from the Veterans Health
Administration for his psychiatric conditions.
After the hearing, appellant submitted a publication regarding the closure of postal
facilities, additional documentation of clock rings with personal comments, and corrections and
additions to the hearing transcript. He also provided a statement reiterating that the employing
establishment was short-staffed with untrained personnel, and that he had to work at times by
himself.
The employing establishment submitted a response prepared for a claim filed by
appellant before the Merit Systems Protection Board.4
In a November 3, 2014 decision, an OWCP hearing representative found that the
December 4, 2013 decision was correct when it was issued. She, however, set aside the decision
based on appellant’s more thorough description of duties he believed led to his condition. The
case was remanded for OWCP to obtain a response from the employing establishment about his
description of his supervisory duties and staffing issues.
On January 27, 2015 OWCP requested that the employing establishment comment
regarding whether other supervisors were scheduled to assist appellant yet routinely left him to
perform the job alone, whether there were there aspects of appellant’s job that could be perceived
as stressful, whether the employing establishment made accommodations to reduce appellant’s
stress, whether staffing shortages affected appellant’s workload, whether appellant was generally
able to perform required duties in accordance with expectations, and whether there were any
performance or conduct problems.

4

This noted that appellant was paid administrative leave from the date of enforced leave on February 27, 2013
until August 15, 2013, and that on May 14, 2013 he refused to return to work after he was offered a nonsupervisory
position at another facility, based on the psychiatric fitness-for-duty evaluation.

4

In a February 11, 2015 letter, J.Y., maintenance manager, advised that appellant
transferred from a Norfolk, VA, to a Richmond, VA, facility on January 1, 2011. He indicated
that the employing establishment had 55 primary pieces of equipment, and there was no
regulation stating how many employees were needed on each tour, noting that there were 47
maintenance positions: three for the building maintenance and 12 custodians to clean and
maintain the facility. J.Y. surmised that on a normal night, 14 or 15 of the 47 positions would be
off. He related that appellant was adamant about taking his lunch period because he needed to
eat when he took medications. J.Y. related that he, not appellant, was responsible to answer for
dispatch issues, and that he, not appellant, attended the meetings and responded to maintenance
allegations. He maintained that appellant was not targeted by employing establishment
management. J.Y. related that when appellant had a mental breakdown and was hospitalized in
July 2013, he had not been at the employing establishment for six months. He advised that
appellant was only required to do what the other supervisors did on a regular basis, and that the
other SMOs on the other tours also faced the same situations as he experienced, noting that mail
processing at the employing establishment was a seven-day-a-week operation. J.Y. related that,
unless he utilized leave, a manager of maintenance operations worked Sunday nights with
appellant. He indicated that Tour 1 maintenance staffing included three supervisors and one
manager. J.Y. noted that there would be times when there were vacant supervisor positions on
each tour, but that these would be filled with acting supervisors who were detailed there
whenever possible. He admitted that, due to either scheduled or unscheduled leave, there were
days when only one supervisor would be on duty, noting that the other SMOs worked under the
same conditions.
J.Y. acknowledged that being a supervisor or manager in a large facility carried a certain
amount of stress by having to address multiple tasks simultaneously, needing a wealth of
knowledge, having a good working relationship with peers and subordinates to be successful,
and having to be ready to respond to all inquiries and to explanations for the performance issues
immediately. He indicated that those who could not do this consistently could feel pressured or
stressed. J.Y. advised that appellant never requested help, and noted that when DRAC offered
him a different position, he turned it down. He related that appellant had multiple opportunities
to take an SMO position on another tour with different nonscheduled days, but that he chose to
stay on Tour 1. J.Y. admitted that the maintenance craft was understaffed on every tour and that
each tour had the same conditions, including operational failures. He advised that SMOs were
expected to perform their assigned duties, including monitoring employees and equipment
maintenance and repairs, while accurately recording and reporting issues.
J.Y. reported that appellant was able to perform his duties, but that he was issued a letter
of warning in 2011 for not addressing attendance issues, and was provided a service talk after he
found a large number of pornographic photographs on the maintenance copy machine. Appellant
admitted that he had printed the pictures after surfing the internet on his lunch break. J.Y.
continued that several complaints had been made against appellant regarding how he interacted
with other employees and supervisors but that, to the best of his recollection, no one had
provided a written statement about appellant’s behavior or actions. He acknowledged that at
times appellant was the sole Tour 1 supervisor. J.Y. maintained that appellant was not required
to work 10-hour days, noting that he was scheduled for a 9-hour period with a 1-hour lunch
break. He advised that appellant only supervised maintenance personnel. These personnel were
sent to training classes in Oklahoma. National service technicians were available to provide
5

telephone support when a problem or issue was beyond local capability and, if necessary, the
support center would dispatch a technician to provide on-site support. J.Y. reported that
appellant had attended three formal training classes at the Oklahoma training center during the
two years he had been at the employing establishment, in May, June, and November 2011.
Appellant submitted additional clock ring reports with appended handwritten notes.
In a May 4, 2015 decision, OWCP denied the claim finding that appellant had failed to
establish a compensable factor of employment.
On May 18, 2015 appellant requested a hearing. On June 5, 2015 he requested subpoenas
for numerous employing establishment records and for personal testimony of named employing
establishment personnel. Appellant maintained that the employing establishment was shortstaffed and that the electronics technicians that worked on the weekend were not sufficiently
trained.
At the hearing, held on January 4, 2016, appellant alleged that the employing
establishment committed perjury, arguing that he was the sole supervisor most of the time,
constantly missed lunch breaks, and that he was not violent. He maintained that J.Y.’s statement
confirmed that he was working alone because other SMOs would go on three-week vacations or
leave work to go to football games, stating that being the sole supervisor caused anxiety, mood
swings, and paranoia. Appellant further indicated that, when machines broke down, there were
not enough technicians who were well-trained, and he would be blamed. He admitted that he
was having anxiety attacks and that his physicians advised that he not return to work. Appellant
asserted that he did not threaten management and maintained that he needed the subpoenas
because the employing establishment had fabricated the evidence related to his dismissal.
By letter dated January 5, 2016, an OWCP hearing representative denied appellant’s
subpoena requests. She noted that he had not explained the relevance of the documents
requested or identified the steps taken to obtain them by other means, noting that he had not
made a Freedom of Information (FOIA) request, and that some of the information requested was
protected by the Privacy Act. The hearing representative also denied appellant’s request for
issuance of a subpoena to compel attendance and testimony of employing establishment
personnel, advising that he had not explained why a subpoena was the best method or
opportunity to obtain such evidence.
In an undated statement, appellant reiterated that he was the sole supervisor for much of
the time during the past two years. He maintained that employees were incapable of keeping the
machines running without calling for help, and that he moved employees to where they were
better trained. Appellant reiterated that he had not made threats. He stressed that he was the sole
supervisor on Tour 1 and included documentation of clock rings.5
By decision dated February 22, 2016, an OWCP hearing representative modified the
May 4, 2014 decision, finding that appellant established as a compensable work factor that he
5

Appellant also submitted evidence regarding applications for other positions, staffing at the Richmond facility,
and corrections and additions to the January 4, 2016 hearing transcript.

6

worked as the lone supervisor on some occasions. She reviewed the medical evidence of record
and denied the claim because the medical evidence failed to establish that his diagnosed
condition was caused by this one factor. The hearing representative also noted that appellant
testified that subpoenas were needed to show that he was the only supervisor on duty, which had
been accepted as factual. She advised that her decision also provided appeal rights for the denial
of the requested subpoenas.
LEGAL PRECEDENT -- ISSUE 1
Section 8126 of FECA provides that the Secretary of Labor, on any matter within his
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.6 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers, or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.7 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.8 Section
10.619(a) of the implementing regulations provides that a claimant may request a subpoena only
as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
To request a subpoena, the requestor must submit the request in writing and send it to the
hearing representative as early as possible, but no later than 60 days (as evidenced by postmark,
electronic marker or other objective date mark) after the date of the original hearing request.9
The hearing representative retains discretion on whether to issue a subpoena. The function of the
Board on appeal is to determine whether there has been an abuse of discretion.10 Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are clearly contrary to logic and probable deduction from
established facts.11

6

5 U.S.C. § 8126(a).

7

20 C.F.R. § 10.619; see Gregorio E. Condi, 52 ECAB 410 (2001).

8

Id.

9

Id. at § 10.619(a)(1).

10

See Gregorio E. Condi, supra note 7.

11

Claudio Vazquez, 52 ECAB 496 (2001).

7

ANALYSIS -- ISSUE 1
In the present case, appellant requested that the hearing representative subpoena a
number of employing establishment personnel and documentation. She denied the request,
finding that the subpoenas were not necessary to the adjudication of the case.
A hearing representative has discretion with respect to the issuance of subpoenas for
documents and testimony. Appellant argued that the subpoenas were crucial to establishing his
emotional condition claim. He, however, did not provide a valid explanation as to why they
were necessary. The hearing representative noted that appellant had not explained the relevance
of the documents requested or identified the steps taken to obtain them by other means, noting
that he had not made a FOIA request. She further noted that some of the information requested
was protected by the Privacy Act. The hearing representative found that appellant had not
explained why a subpoena was the best method or opportunity to obtain such evidence. As
appellant presented no evidence to show that subpoenas were necessary with respect to the
development of the relevant evidence in this case, the Board finds no abuse of discretion related
to the denial of a subpoena request.12
LEGAL PRECEDENT -- ISSUE 2
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.13 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.14 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.15
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,16 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.17 When an employee experiences emotional stress in carrying out his or
12

D.O., Docket No. 15-1368 (issued October 22, 2015).

13

Leslie C. Moore, 52 ECAB 132 (2000).

14

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

15

Id.

16

28 ECAB 125 (1976).

17

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

8

her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.18 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.19 Where the
claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence.20 Personal perceptions alone are insufficient to
establish an employment-related emotional condition.21
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.22 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.23
For harassment or discrimination to give rise to a compensable disability, 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. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.24
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other employing
establishments, such as the Equal Employment Opportunity Commission, which is charged with
statutory authority to investigate and evaluate such matters in the workplace. Rather, in
evaluating claims for workers’ compensation under FECA, the term “harassment” is
synonymous, as generally defined, with a persistent disturbance, torment or persecution, i.e.,
mistreatment by coemployees or coworkers. Mere perceptions and feelings of harassment will
not support an award of compensation.25
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.26 The opinion of the physician must be
18

Supra note 16.

19

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

20

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

21

Roger Williams, 52 ECAB 468 (2001).

22

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

23

Kim Nguyen, 53 ECAB 127 (2001).

24

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

25

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

26

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.27 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.28
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision. Appellant attributes his
emotional condition to several factors. First and foremost, he alleged that he frequently had to
work as the sole SMO on busy Tour 1, from 9:45 p.m. to 6:45 a.m. OWCP accepted this as a
compensable factor of employment, and the Board agrees. J.Y., maintenance manager,
concurred that, due to other supervisors taking leave or other matters, at times appellant worked
as the sole supervisor.29
Appellant also asserted that he would become stressed because Tour 1 was understaffed.
The Board finds this, too, a compensable factor of employment. Again, J.Y. admitted that the
maintenance craft was understaffed on every tour, noting that SMOs were expected to monitor
employees and equipment maintenance and repairs while accurately recording and reporting
issues. As supervising maintenance personnel was one of appellant’s regular assigned duties,
this is a compensable factor of employment.30
As to appellant’s allegation regarding the radio he had to use, the Board has long held
that the provision of equipment relates to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties and does not fall within the coverage of
FECA, absent error and abuse.31 Appellant presented no evidence that the radios he used were
inoperable or other evidence to substantiate error and abuse in this administrative matter.32
The record also contains no evidence that other supervisors took leave inappropriately.
This would not be a compensable factor of employment. As to his allegation that the employees
he supervised were not properly trained, J.Y. explained that all employees were sent for training
as appropriate. This too would not be compensable. Where the claimant alleges compensable
factor of employment, he or she must substantiate each allegation with probative and reliable
evidence.33 Appellant did not do so regarding these claimed factors.
27

Supra note 13; Gary L. Fowler, 45 ECAB 365 (1994).

28

Dennis M. Mascarenas, 49 ECAB 215 (1997).

29

Kimber A. Stokke, 48 ECAB 510 (1997).

30

Supra note 16; see Edward J. Hilinski, Docket No. 00-0378 (issued February 13, 2001).

31

See Brian H. Derrick, 51 ECAB 417 (2000).

32

Id.

33

Supra note 20.

10

If an employee establishes a compensable factor of employment, OWCP must base its
decision on an analysis of the medical evidence.34 In her February 22, 2016 decision, OWCP’s
hearing representative found one compensable factor established, that at times appellant was the
sole SMO on Tour 1 and analyzed the medical evidence on that basis. The Board has found a
second compensable factor, that the maintenance craft that he supervised was understaffed on
every tour.
As appellant has established two compensable factors of employment, and the
February 22, 2016 decision addressed only one, the Board will set aside OWCP’s February 22,
2016 decision denying the claim. OWCP must base its decision on an analysis of the medical
evidence as it relates to these two factors. The case will therefore be remanded to OWCP to
analyze and develop the medical evidence.35 After this and such further development deemed
necessary, OWCP shall issue a de novo decision on the merits of this claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s subpoena request. With respect
to the emotional condition issue, the case is not in posture for decision as the evidence
establishes two compensable factors of employment.

34

See supra note 22.

35

Tina D. Francis, 56 ECAB 180 (2004).

11

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed with regard to the denial of appellant’s subpoena
request. The decision is otherwise set aside and the case is remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: February 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12