United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 07-587
Issued: October 18, 2007

Case Submitted on the Record

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

JURISDICTION
On December 27, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 21, 2006 merit decision denying her claim for recurrence of
total disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of total disability on or after March 20, 2006 due to her November 9, 1988
employment injury.
FACTUAL HISTORY
On November 10, 1988 appellant, then a 29-year-old markup clerk, filed a traumatic
injury claim alleging that she sustained injury on November 9, 1988 when a gate fell down and
hit her left knee. Appellant stopped work on November 9, 1988 and later returned to limitedduty work for the employing establishment. The Office accepted that appellant sustained a neck

sprain/strain, left foot and left lower limb contusions, left shoulder and upper arm strains, and
medial meniscus tear of the left knee and paid her appropriate compensation.1
On September 20, 1994 appellant began working for four hours per day at the employing
establishment as a modified clerk. The position did not require twisting, kneeling, climbing,
squatting, bending or overhead lifting and restricted lifting to 10 pounds. Appellant could
intermittently alternate between sitting, walking, standing and lifting and was not required to
drive more than 20 minutes or type on a computer for more than an hour. The duties of the
position were in accordance with work restrictions provided on September 16, 1994 by Dr. Yee
Chen, an attending Board-certified orthopedic surgeon. In a November 22, 1994 decision, the
Office adjusted appellant’s compensation effective November 13, 1994 to reflect that her actual
wages as a modified clerk fairly and reasonably reflected her wage-earning capacity.
In June 2003, appellant started working for four hours per day (between 2:00 and 6:00
p.m.) at the employing establishment as a modified automated markup clerk. The position did
not require twisting, kneeling, climbing, pulling, pushing, squatting or reaching above shoulder
height and restricted lifting to 10 pounds. Appellant could intermittently alternate between
sitting, walking, standing and engaging in repetitive elbow motion.2 On June 22, 2004,
Dr. Joseph I. Hoffman, a Board-certified orthopedic surgeon serving as an Office referral
physician, indicated that appellant could work for four hours per day and could sit, walk, stand,
lift, push, pull and engage in repetitive wrist and elbow motions for four hours per day. He
stated that appellant could lift, push or pull up to 10 pounds, drive to and from work for four
hours per day, reach for two hours per day and twist, bend or stoop for one hour per day. He
noted that appellant could not squat, kneel or climb.
Appellant stopped work on March 20, 2006 and went into leave without pay status. In
April and May 2006, she filed Forms CA-7 alleging that she sustained total disability beginning
March 20, 2006 and continuing. On May 23, 2006 the Office requested that appellant submit
additional evidence in support of her claim for total disability.
In a May 23, 2006 letter, Vivian Robinson, an employing establishment official stated
that limited-duty work remained available to appellant. The official stated: “[that] the job offer
was made because she was reassigned to another area to work. The new area is within her
driving restriction and duties meet her physical limitations.” The record contains a description of
the modified monitor position which involved working four hours per day between 11:00 a.m.
and 3:00 p.m. The position allowed appellant to intermittently alternate between sitting,
walking, standing and lifting up to 10 pounds. The position did not require reaching above the
shoulders, twisting, pulling, pushing, squatting, kneeling, bending or climbing.3

1

In February 1989 appellant underwent a left meniscectomy which was authorized by the Office. On January 13,
1993 she received a schedule award for a 15 percent permanent impairment of her left leg.
2

The job site was located at the Hub and Spoke Facility on Tradeport Drive in Atlanta.

3

The job site was located at the General Mail Facility on Crown Road in Atlanta.

2

The record contains a memorandum from Doreen Ortiz, an Office claims examiner, of a
June 2, 2006 telephone conference she held with Ms. Robinson and Bonnie Herron, another
employing establishment official. Ms. Ortiz indicated that appellant had made an accusation that
the employing establishment was not giving her work that was within her work restrictions and
had asked her to leave the Hub and Spoke Facility located on Tradeport Drive in Atlanta. She
indicated that Ms. Herron had stated that headquarters had mandated that almost all limited-duty
employees be moved to the General Mail Facility, which was not far from the Hub and Spoke
Facility, in order to allow them to continue their limited-duty work. Ms. Robinson indicated that
the new job description was sent by overnight mail to appellant and stated that, after appellant
indicated on March 20, 2006 that the work hours were inconvenient, the hours were changed to
allow her to work from 11:00 a.m. and 3:00 p.m.4
In a June 19, 2006 letter, appellant stated that on March 19, 2006 her supervisor,
J.B. Gibbons, told her that it was her last day at the Hub and Spoke Facility and directed her to
call Ms. Robinson for further instructions about her new work arrangements. She asserted that
she spoke to Ms. Robinson on March 20, 2006 and told her that she could only work a “desk
job” and could only work on the dayshift. Appellant indicated that she also spoke to Ms. Herron
who told her that the new job was “not a desk job.” She claimed that she was “pulled off” her
regular limited-duty work and that her new workplace was “moved out of my driving limitation
range.” Appellant asserted that Ms. Robinson and Ms. Herron did not respond to her further
attempts to contact them.
In a September 21, 2006 decision, the Office denied appellant’s claim that she sustained a
recurrence of total disability on March 20, 2006 due to her November 9, 1988 employment
injury. The Office indicated that appellant had appropriate limited-duty work available to her on
or after March 20, 2006 and that she had not shown that she was unable to perform this work
such that she became totally disabled due to her employment-related conditions on or after
March 20, 2006.5
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden the employee must

4

The record contains a July 6, 2006 letter, in which Ms. Robinson indicated that appellant was sent the new job
offer on March 13, 2006 by overnight mail. She indicated that the job offer was amended to allow appellant to work
from 11:00 a.m. to 3:00 p.m. and that the job remains available to her.
5

The Office cited precedent regarding the standards for modifying a loss of wage-earning capacity determination,
but it did not conduct an evaluation of whether appellant’s September 1994 loss of wage-earning capacity
determination should be modified. The Office noted that once a loss of wage-earning capacity is determined, a
modification of such a determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was in fact erroneous. See George W. Coleman, 38 ECAB 782, 788 (1987).

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show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the limited-duty job requirements.6
ANALYSIS
The Office accepted that appellant sustained a neck sprain/strain, left foot and left lower
limb contusions, left shoulder and upper arm strains and medial meniscus tear of the left knee on
November 9, 1988. Through March 19, 2006, appellant was working for four hours per day,
between 2:00 and 6:00 p.m., in a limited-duty position as a modified automated markup clerk.
The position did not require twisting, kneeling, climbing, pulling, pushing, squatting, or reaching
above shoulder height and restricted lifting to 10 pounds. Appellant could intermittently
alternate between sitting, walking, standing and engaging in repetitive elbow motion.7 She
stopped work on March 20, 2006 and claimed that she sustained a recurrence of total disability
due to her employment-related conditions. Appellant asserted that she was “pulled off” her
regular limited-duty work in that the job she was asked to report to on March 20, 2006 was
beyond her work restrictions. She also asserted that her new workplace was “moved out of my
driving limitation range.”
The Board finds that appellant did not meet her burden of proof to show that there was a
change in the nature and extent of her limited-duty job requirements such that she sustained a
recurrence of total disabled for any period on or after March 20, 2006. The Board notes that
appellant has not made any allegation that her claimed recurrence of total disability was due to a
change in the nature and extent of her injury-related condition.8
Although appellant claimed that appropriate limited duty was not available after
March 20, 2006 she did not submit sufficient evidence to establish this claim. The evidence of
record, including numerous statements from employing establishment officials, shows that
appropriate limited-duty work remained available to appellant on and after March 20, 2006.
Effective March 20, 2006, appellant was to start a new limited position as a modified monitor
position which involved working four hours per day between 11:00 a.m. and 3:00 p.m. She was
sent a job offer for this position by overnight mail on March 13, 2006. The position allowed
appellant to intermittently alternate between sitting, walking, standing and lifting up to
10 pounds. The position did not require reaching above the shoulders, twisting, pulling, pushing,

6

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

7

The job site was located at the Hub and Spoke Facility on Tradeport Drive in Atlanta.

8

Appellant did not submit any medical evidence concerning her employment-related medical condition on or
after March 20, 2006. In fact, the last medical evidence of record is a June 22, 2004 report of Dr. Hoffman, a Boardcertified orthopedic surgeon serving as an Office referral physician. Dr. Hoffman indicated that appellant could
work for four hours per day and could sit, walk, stand, lift, push, pull and engage in repetitive wrist and elbow
motions for four hours per day. He stated that appellant could lift, push or pull up to 10 pounds, drive to and from
work four hours per day, reach for two hours per day and twist, bend or stoop for one hour per day. Dr. Hoffman
noted that appellant could not squat, kneel or climb.

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squatting, kneeling, bending or climbing.9 The Board finds that these job duties are essentially
the same as the job duties of the limited duty she performed through March 19, 2006.10
Appellant claimed that her new workplace was “moved out of my driving limitation
range,” but the record reveals that both the old and the new work sites were located in Atlanta
and there is no indication in the record that her employment-related conditions prevented her
from driving to the new worksite.11 She claimed that an employing establishment official told
her that her new job was not a “desk job” but she did not explain how the duties of the new job
changed such that she was rendered totally disabled.
For these reasons, appellant did not meet her burden of proof to establish that she
sustained a recurrence of total disability on or after March 20, 2006 due to her November 9, 1988
employment injury. The Office properly denied her claim for an employment-related recurrence
of total disability.12
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of total disability on or after March 20, 2006 due to her November 9, 1988
employment injury.

9

The job site was located at the General Mail Facility on Crown Road in Atlanta.

10

Moreover, the duties of this job were within the work restrictions recommended by Dr. Hoffman.

11

Dr. Hoffman indicated that appellant could drive to and from work for four hours per day. Appellant has not
submitted any medical evidence regarding her ability to drive.
12

The Board notes that it was not necessary for the Office to conduct an evaluation of whether appellant’s
September 1994 loss of wage-earning capacity determination should be modified because she had not claimed a
material change in the nature and extent of her injury-related condition. See supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 21, 2006 decision is affirmed.
Issued: October 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamestown, NY, Employer
__________________________________________

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

Docket No. 07-1511
Issued: November 5, 2007

Case Submitted on the Record

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

JURISDICTION
On May 8, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated April 10, 2007 which denied her reconsideration request
on the grounds that it was untimely filed and failed to establish clear evidence of error. Because
more than one year has elapsed between the last merit decision dated August 4, 2003 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 41-year-old flat sorter, filed a
Form CA-2 claim for benefits on December 5, 2000, alleging that she developed a bursitis
condition causally related to factors of her federal employment. The Office accepted the claim

for exacerbation of degenerative arthritis of the right hip. The Office paid appropriate
compensation for temporary total disability and placed her on the periodic rolls. By decision
dated August 4, 2003, the Office terminated appellant’s compensation on the grounds that she
refused an offer of suitable employment. By letter dated February 7, 2006, appellant requested
an oral hearing. By decision dated March 15, 2006, an Office hearing representative denied
appellant’s hearing request as untimely pursuant to section 8124. The Office found that the issue
could be equally well addressed through the submission of new and relevant evidence
accompanying a valid request for reconsideration.
By letter received May 2, 2006, appellant requested reconsideration of the termination of
her compensation for refusing suitable work. She stated that her treating physician outlined
work restrictions in 2001 which precluded her from performing the job offered by the employing
establishment. Appellant asserted that she had enclosed medical evidence indicating that she
was not able to accept the job offer for this reason. She submitted additional medical evidence
with her reconsideration request; including: (a) an April 4, 2006 report from Dr. C. Gregory
Kang, a physiatrist, indicating that appellant was treated for sleep apnea; (b) an April 20, 2006
treatment note from a registered nurse; (c) a treatment report dated April 6, 2006 from a
psychological counseling center; (d) an undated work limitation form received by the Office on
May 2, 2006; and (e) reports from February 2001, September and October 2002 and March,
April and August 2003.
By decision dated May 9, 2006, the Office denied reconsideration on the grounds that it
was untimely and did not show clear evidence of error. In a March 2, 2007 decision,1 the Board
affirmed the Office’s March 15, 2006 decision denying appellant’s request for an oral hearing on
the basis of untimeliness. However, the Board set aside the May 9, 2006 Office decision
denying reconsideration, finding that the Office failed to discuss or consider the factual and
medical evidence appellant submitted with her request. The Board noted that the Office was
required to make findings of fact and a statement of reasons regarding the material facts in the
case. The Board therefore found that the Office failed to properly adjudicate the issue of
whether appellant established clear evidence of error.
By decision dated April 10, 2007, the Office denied appellant’s request for
reconsideration without a merit review, finding that she had not timely requested reconsideration
and had failed to submit factual or medical evidence sufficient to establish clear evidence of
error. The Office stated that appellant was required to present evidence which showed that the
Office made an error, and that there was no evidence submitted that showed that its final merit
decision was in error.

1

Docket No. 06-1476 (issued March 2, 2007).

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle an
employee to a review of an Office decision as a matter of right.3 This section, vesting the Office
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.5 The Board has found that the
imposition of this one-year time limitation does not constitute an abuse of the discretionary
authority granted by the Office under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held
however that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.7 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if appellant’s application for review
shows “clear evidence of error” on the part of the Office.8

2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
4

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that the Office erroneously applied or interpreted a point of law; or (2) advancing a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office. See 20 C.F.R. § 10.606(b).
5

20 C.F.R. § 10.607(b).

6

See cases cited supra note 2.

7

Rex L. Weaver, 44 ECAB 535 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

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To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.9 The evidence must be positive, precise and explicit and
must be manifested on its face that the Office committed an error.10 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.11 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.12 This entails a limited review by the Office of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of the Office.13 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.14 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.15
ANALYSIS
The Board found in its March 2, 2007 decision that the Office properly determined in this
case that appellant failed to file a timely application for review.
The Board finds that appellant’s May 2, 2006 request for reconsideration failed to show
clear evidence of error. The only new medical reports submitted in support of the untimely
request for reconsideration were Dr. Kang’s April 4, 2006 report documenting appellant’s
treatment for sleep apnea and the April 6, 2006 treatment report from a psychological counseling
center. These reports do not establish clear evidence of error as they did not provide a reasoned
medical opinion on the underlying issue; i.e., whether appellant established as of August 4, 2003
that her refusal of suitable work was justified.
A determination that an offered position is medically suitable is based on medical
evidence at the time the position is offered and includes consideration of nonemployment-related
conditions as well as employment-related conditions.16 The work limitation form received by the
Office on May 2, 2006 was not signed by a physician and was not dated; thus, there is no
evidence that this report was contemporaneous with the offer of the position and the termination
9

See Dean D. Beets, 43 ECAB 1153 (1992).

10

See Leona N. Travis, 43 ECAB 227 (1991).

11

See Jesus D. Sanchez, supra note 3.

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

Leon D. Faidley, supra note 3.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

16

See Janice S. Hodges, 52 ECAB 379 (2001).

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of benefits in 2003. The April 20, 2006 treatment note from a registered nurse was not written
by a physician and therefore does not constitute medical evidence under section 8101(2).
Appellant therefore failed to submit any medical evidence with respect to her inability to perform
the job offered by the employing establishment as of August 4, 2003 due to her accepted bursitis
condition. Further, appellant resubmitted a number of reports which were previously considered
by the Office in prior decisions; these reports are cumulative and repetitive of reports previously
rejected by the Office. No other evidence was received by the Office. Appellant has failed to
establish clear evidence of error on the part of the Office.
The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in her reconsideration request dated May 2, 2006. Inasmuch as appellant’s
reconsideration request was untimely filed and failed to establish clear evidence of error, the
Office properly denied further review on April 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 07-1131
Issued: January 11, 2008

Case Submitted on the Record

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

JURISDICTION
On March 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated January 17, 2007, which denied his request for
reconsideration and an October 30, 2006 decision that denied his claim for an emotional
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these
issues.
ISSUES
The issues on appeal are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly refused to reopen appellant’s case for
further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 1, 2006 appellant, then a 55-year-old mail processing clerk, filed an
occupational disease claim, alleging that he sustained depression and post-traumatic stress as a
result of harassment, a hostile work environment and institutional discrimination from July 3 to

21 and August 8, 2006. He realized his condition was caused or aggravated by his employment
on August 11, 2006. Appellant stopped work on August 8, 2006. He submitted reports dated
August 21, 2006 in which Dr. William W. Friday, a Board-certified psychiatrist, diagnosed
dysthymic disorder and generalized anxiety. Dr. Friday checked a box “yes” indicating that
appellant’s condition was work related. He listed as an example that appellant was called the
district manager’s “boyfriend by his supervisors and coworkers.” Dr. Friday indicated that
appellant was partially disabled from August 11 to 25, 2006 and could return to regular duty on
August 26, 2006.
In a September 2, 2006 e-mail to Angie Strathie, a manager of distribution operations,
appellant addressed an Equal Employment Opportunity (EEO) matter in which he “wanted
compensation and my high three salary.” In a September 18, 2006 statement, appellant alleged
that, on July 3, 2006, Don Lewis, a coworker, was chatting with Tonya Weems, when
Larry Wilson, a manager of district operations, appeared and angrily started using expletives and
chased him up an aisle while saying “this is my woman, I got to protect her from you.” He stated
that Mr. Wilson approached Ms. Weems and used expletives toward her and then got into his car
and drove away. Appellant alleged that, on July 19, 2006, Mr. Wilson told him to “[k]eep
smiling, Kate Wiley’s boyfriend, I got to protect my job and my women.” He asserted that this
statement was uttered in front of Colleagues Barry Prysock and Allen New and was an example
of unequal treatment. Appellant alleged unfair treatment regarding promotions, job assignments,
reasonable accommodations, retaliation, race, color, sex, age and also alleged a hostile work
environment and harassment. He alleged that several of his coworkers had asked for the
opportunity to be assigned for “upward mobility.” However, the employing establishment did
not give training to these individuals and appellant alleged that this was an example of not giving
the training to black males which had continued since 1980. Appellant alleged that this caused a
feeling of hopelessness, being irritated and depression. He stated that he became depressed with
the weight of the black males asking for help on his shoulders.
In a September 1, 2006 statement, Mr. Wilson stated that appellant worked in the same
unit as his wife. He noted that on July 3, 2006 he stopped by to speak with his wife and asked
appellant “[d]o you know that’s my wife?” Mr. Wilson alleged that appellant immediately
walked away without responding. He also denied that he was angry, used expletives or made
any comments that appellant was the boyfriend of another individual. Mr. Wilson noted that
appellant was interested in a new position but that, while he initially supported the move, he was
informed that appellant had “cussed Mr. Bob Cadegan (supervisor) out a few days prior.”
Mr. Wilson later advised appellant that he could not support him if he was going to “continue to
disrespect and cuss people out on the workroom floor.”
In a letter dated September 5, 2006, Elizabeth Adams, an employing establishment case
manager, controverted the claim. In a September 8, 2006 statement, Ms. Strathie indicated that,
when she questioned appellant regarding his allegations of harassment and discrimination, she
could not get “any straight answers.” For example, she noted that appellant alleged that he
sustained property damage to his car when someone wrote on his car in the parking lot and he
believed that it was Supervisor Jeff Acker. Ms. Strathie noted that Mr. Acker did not know
appellant at the time or what type of car he drove. She informed the Office that appellant had
been demoted in the 1980’s and was “bitter” ever since. Ms. Strathie alleged that she spoke with
individuals in appellant’s work unit, but could find no one who had witnessed any person

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harassing appellant. She denied appellant’s allegations that he was “being threatened or
assaulted or exposed to a hostile work environment” at the employing establishment.
By letter dated September 21, 2006, the Office informed appellant of the evidence needed
to support his claim. No additional evidence was received.
By decision dated October 30, 2006, the Office denied the claim on the basis that the
alleged incidents were not established as having occurred. It found that appellant did not
establish any compensable factors as arising in the performance of duty.1
On December 2, 2006 appellant requested reconsideration, provided evidence and
commented on the claims process. He alleged that harassment or teasing of employees was a
compensable work factor and he repeated allegations about the incidents of July 3 and 19, 2006.
Appellant also alleged that on July 26, 2006 he filed an EEO claim and on August 8, 2006 a
plant manager, Lauren Harkins, discussed the low score of “employee and supervisor
relationships in the plant.” He noted that on August 29, 2006 he was sent for a fitness-for-duty
examination for preexisting injuries. On September 1, 2006 appellant requested a reasonable
accommodation and sick leave, which were denied. He stated that, on September 8, 2006, his
request for a pay adjustment for leave without pay was signed a month after the fact. On
October 20, 2006 appellant alleged that he was in the performance of duty when Karen Moreno,
a supervisor, called a “service talk” and “poked” a memorandum in his face and laughed. He
stated that, in February 2006, she ridiculed him about being “[Ms.] Wiley’s ex-boyfriend.”
Appellant alleged that, on November 4, 2006, his acting supervisor, Roberta Bricker, harassed
him about his case not being full, whether he had the job offer that she had given to him on
November 3, 2006 and whether he was asleep on the job. Appellant alleged these were examples
of a hostile work environment. He further alleged as work factors that Ms. Strathie
discriminated supervisors under her; a confrontation with Ms. Bricker in the fall 2004 regarding
“special privileges”; an October 1, 2005 dispute resolution concerning Mr. Acker; an October 11,
2005 request for upward mobility; a September 1, 2006 denial of an unspecified payment; and a
November 4, 2006 reasonable accommodation dispute.
In a November 4, 2006 memorandum, Ms. Bricker stated that she observed appellant on
that date for several minutes and saw no movement, approached him and lightly tapped his
shoulder. She alleged that appellant stood up and began yelling that she should “quit profiling
him and leave the ‘black boy’ alone.” Ms. Bricker alleged that appellant began using profanity
and asked where her ex-husband was. She ignored him and he later came back and asked her not
to call him by his first name. Thereafter, she called appellant by his last name. Ms. Bricker also
alleged that appellant had been involved in several altercations with other employees.
In a December 17, 2006 affidavit, appellant alleged that on December 13, 2006 he
noticed several employees and observed the amount of mail they were processing. He alleged
that Managers Moreno, Bricker and Strathie confronted him and told him to “stay away” from
that work unit “and that’s an order.” Appellant alleged that fraud was being committed because
1

Appellant subsequently filed several claims for recurrences of disability for the dates of October 16,
November 4 and December 13, 2006. The Office advised appellant that no action would be taken on his recurrence
claims as his claim was denied.

3

there were five clerks doing nothing and that this showed unequal treatment. In a January 6,
2007 statement, Ms. Strathie denied appellant’s allegations regarding the December 13, 2006
incident and explained that it was a supervisor’s responsibility to monitor the work of
employees.
In a December 29, 2006 statement, appellant alleged a December 20, 2006 incident
occurred where James Cochran, a coworker, shouted at him and told him that he had to “protect
these white girls from the likes of you and your kind.” He alleged that Mr. Cochran was racist.
In a January 6, 2007 statement, Mr. Cochran denied appellant’s allegations. The Office also
received articles on “white privilege” and articles defining various types of behavior and the
penalties for false claims.
In a January 17, 2007 decision, the Office denied appellant’s request for reconsideration
without a review of the merits on the grounds that insufficient evidence was submitted.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Federal Employees’ Compensation Act.2 On the
other hand, the disability is not covered where it results from such factors as an employee’s fear
of a reduction-in-force or his frustration from not being permitted to work in a particular
environment or to hold a particular position.3
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
4

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

5

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

4

factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an emotional condition as a result of employment
incidents and conditions at work. The Board must initially review whether the alleged incidents
and conditions of employment are compensable under the terms of the Act.
The Board notes that appellant made several allegations related to administrative or
personnel matters. These allegations are unrelated to his regular or specially assigned work
duties and do not generally fall within the coverage of the Act.8 The Board has held however
that an administrative or personnel matter will be considered to be an employment factor where
the evidence discloses error or abuse. In determining whether the employing establishment erred
or acted abusively, the Board has examined whether management acted reasonably.9
Appellant noted the employing establishment’s failure to promote him. Although
evaluations and job performance issues are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.10 The employing
establishment controverted appellant’s claim and denied acting unreasonably with regard to such
matters. In a September 1, 2006 statement, Mr. Wilson indicated that he was aware that
appellant was interested in a new position. While he supported the move, initially, he was
informed that appellant swore at a supervisor a “few days prior.” Mr. Wilson stated that he
could not support appellant’s promotion if he was going to “continue to disrespect and cuss
people out on the workroom floor.” Ms. Strathie advised the Office that she had questioned
appellant regarding his allegations, but that she could not get “any straight answers from him.”
She also indicated that appellant was demoted in the 1980’s and was bitter ever since.
Additionally, Ms. Strathie indicated that she has spoken with persons in appellant’s work unit,
but could find no one who confirmed appellant’s allegations. The Board finds that the evidence
does not show that the employing establishment acted unreasonably regarding its consideration
of appellant for promotions. Appellant alleged that, on August 11, 2006, several coworkers had
asked for the opportunity to receive training or to be assigned for upward mobility. However, no
training or opportunity was afforded to them. Appellant alleged that this was another example of
6

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

7

Id.

8

An employee’s emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the Act as such matters pertain to procedures and requirements of the employer
and do not bear a direct relation to the work required of the employee. Sandra Davis, 50 ECAB 450 (1999).
9

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

10

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).

5

discrimination which had taken place since 1980. The Board finds that these allegations
pertaining to training and promotions relate to administrative or personnel matters, unrelated to
appellant’s regular or specially assigned work duties and do not fall within the coverage of the
Act.11 Appellant’s allegations of unreasonable treatment pertaining to these matters is not
supported by the evidence. For example, he did not submit any statements from coworkers
corroborating his allegations.12 Appellant has not presented evidence to show erroneous or
abusive actions by management regarding training and promotion. He has not established a
compensable employment factor with respect to these administrative matters.
Appellant also asserted that he was harassed and verbally abused by his supervisors. He
alleged that, on July 3, 2006, Mr. Lewis, a coworker, was chatting with Ms. Weems, when
Mr. Wilson appeared and angrily used expletives and chased him up the aisle. Appellant also
alleged that, on July 19, 2006, Mr. Wilson told him to “[k]eep smiling, [Ms.] Wiley’s boyfriend,
I got to protect my job and my women.” He alleged that this statement was uttered in front of
several coworkers. However, appellant did not provide any corroborating evidence such as
witness statements to support his allegations.13 Mr. Wilson denied appellant’s allegations that on
July 3, 2006 he was angry, used expletives or made any comments that appellant was the
boyfriend of another individual. He explained that he had stopped to speak with his wife and
asked appellant “[d]o you know that’s my wife?” Mr. Wilson alleged that appellant immediately
walked away without responding. The Board finds that appellant has not established that he was
subjected to harassment or verbal abuse by his supervisors. Although the Board has recognized
the compensability of verbal abuse in certain circumstances, this does not imply that every
statement uttered in the workplace will give rise to coverage under the Act.14 Appellant has not
submitted evidence to establish how Mr. Wilson’s identification of his wife would rise to the
level of verbal abuse or otherwise fall within the coverage of the Act.15
To the extent that appellant asserted that the actions on the part of his supervisors
constitute harassment and discrimination and contributed to his claimed stress-related condition;
the Board has held that these could constitute employment factors.16 However, for harassment or
discrimination to give rise to a compensable disability under the Act, there must be evidence that
harassment or discrimination did in fact occur. Mere perceptions of harassment or

11

See Lori A. Facey, 55 ECAB 217 (2004).

12

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

13

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
14

Harriet J. Landry, 47 ECAB 543, 547 (1996).

15

See, e.g., Alfred Arts, 45 ECAB 530, 543-44 (1994) and cases cited therein (finding that the employee’s
reaction to coworkers’ comments such as “you might be able to do something useful” and “here he comes” was selfgenerated and stemmed from general job dissatisfaction). Compare Abe E. Scott, 45 ECAB 164, 173 (1993) and
cases cited therein (finding that a supervisor’s calling an employee by the epithet “ape” was a compensable
employment factor).
16

David W. Shirey, 42 ECAB 783 (1991).

6

discrimination are not compensable under the Act.17 In the present case, the employing
establishment denied that appellant was subjected to harassment or discrimination and, as noted,
he has not submitted sufficient evidence to establish harassment or discrimination by his
supervisors or coworkers. While appellant alleged that his supervisors created a hostile work
environment, he has not supported the allegations with specific instances and dates. The
employing establishment denied any knowledge of his allegations. Furthermore, in a
September 8, 2006 statement, the manager of distribution operations, Ms. Strathie, indicated that,
when she questioned appellant regarding the allegations of harassment and discrimination, she
could not get any “straight” answers. The Board finds that the evidence is insufficient to
establish that the employing establishment harassed or discriminated against appellant
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.18
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,19 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law;
“(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 [the Office].”20
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.21

17

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

18

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
19

5 U.S.C. § 8128(a).

20

20 C.F.R. § 10.606(b).

21

Id. at 10.608(b).

7

ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim for an emotional condition and requested
reconsideration on December 2, 2006. The underlying issue on reconsideration was whether he
established a compensable factor of employment with regard to his emotional condition claim.
Appellant did not show that the Office erroneously applied or interpreted a specific point of law,
advance a relevant new argument not previously considered nor did he provide any relevant or
pertinent new evidence regarding whether he sustained an emotional condition in the
performance of duty.
In his December 2, 2006 request for reconsideration, appellant essentially reiterated his
previous arguments. As noted above, this involved allegations that on July 3 and 19, 2006 he
was subjected to a hostile work environment and inappropriate remarks. Appellant also made
general allegations regarding harassment. The Board finds that appellant reiterated his prior
contentions regarding the actions at the employing establishment which he believed were
stressful. The submission of evidence which repeats or duplicates evidence that is already in the
case record does not constitute a basis for reopening a case for merit review.22
Appellant also provided his opinion of the claims process. On August 29, 2006 he was
sent for a fitness-for-duty examination for preexisting injuries and, on September 1, 2006, his
requests for a reasonable accommodation and sick leave were denied. Appellant noted that, on
September 8, 2006, his request for a pay adjustment for leave without pay was signed a month
after the fact. The Board finds that this evidence is not relevant to appellant’s claim for an
emotional condition which he alleged occurred during the time period July 3 to
August 21, 2006.23 Appellant noted that, on July 26, 2006, he filed an EEO claim but did not
include a copy or finding from that claim or explain how it pertained to incidents he alleged in
this claim. Additionally, he alleged that, on August 8, 2006, Ms. Harkins discussed the low
score of “employee and supervisor relationships in the plant.” The Board notes that appellant
has not shown how this is relevant to any aspect of his claim which the Office denied on
October 30, 2006. The submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case.24
Consequently, the evidence submitted by appellant on reconsideration does not satisfy
any of the criteria, noted above, for reopening a claim for merit review. The Office properly
denied his request for reconsideration.

22

David J. McDonald, 50 ECAB 185 (1998); John Polito, 50 ECAB 347 (1999); Khambandith Vorapanya,
50 ECAB 490 (1999).
23

To the extent that appellant is alleging a new injury occurred, he may wish to file a new claim.

24

Robert P. Mitchell, 52 ECAB116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).

8

CONCLUSION
Appellant has not met his burden of proof in establishing that he sustained an emotional
condition in the performance of duty. The Board also finds that the Office properly refused to
reopen appellant’s case for further review of the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2007 and October 30, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 11, 2008
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newington, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1843
Issued: January 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 5, 2013 appellant filed a timely appeal from a February 5, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly found appellant had an 11 percent permanent
impairment to his right upper extremity.

1
2

5 U.S.C. § 8101 et seq.

A claimant has 180 days to file an appeal with the Board. 20 C.F.R. § 501.3(e). The 180th day following the
February 5, 2013 OWCP decision was Sunday, August 4, 2013. Pursuant to Board regulations, the time period for
filing a timely appeal was extended until the next business day, Monday August 5, 2013. See 20 C.F.R.
§ 501.3(f)(2).

FACTUAL HISTORY
On February 18, 2009 appellant, then a 58-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 5, 2009 he sustained injuries when he slipped on
ice while in the performance of duty. OWCP initially accepted the claim on May 6, 2009 for
right shoulder subscapular tear and right hip contusion. Appellant underwent right shoulder
arthroscopic surgery on May 21, 2009 performed by Dr. Joseph Mazzara, a Board-certified
orthopedic surgeon. In a report of that date, Dr. Mazzara indicated that the surgery involved an
arthroscopic distal clavicle excision and debridement superior labral tear from anterior to
posterior lesion of the right shoulder. Appellant returned to a light-duty position on
July 16, 2009.
The record indicates that appellant underwent additional right shoulder surgery on
June 24, 2010. Dr. Mazzara described the surgery in his report of that date as right shoulder
arthroscopy, debridement of partial rotator cuff tear and subacromial bursa and acromioplasty of
subacromial space. According to a statement of accepted facts (SOAF) dated January 26, 2011,
OWCP also accepted the conditions of right shoulder osteoarthritis and right shoulder rotator
cuff strain.
In a report dated June 14, 2011, Dr. Mazzara provided results on examination. He opined
that appellant had reached maximum medical improvement and had a 15 percent permanent
impairment under the American Medical Association, Guides to the Evaluation of Permanent
Impairment based on the right shoulder. Dr. Mazzara stated that the percentage impairment took
into account the acromioplasty, distal clavicle excision, biceps tenodesis and residual symptoms
of tendinopathy. He did not discuss any specific tables under the A.M.A., Guides.
By report dated February 26, 2012, OWCP’s medical adviser opined that appellant had
an 11 percent right arm permanent impairment. The medical adviser identified Table 15-5 under
the sixth edition of the A.M.A., Guides. According to the medical adviser, the default
impairment was 10 percent for distal clavicle resection of the acromioclavicular (AC) joint. An
additional one percent was added based on grade modifiers for Functional History (GMFH),
Clinical Studies (GMCS) and Physical Examination (GMPE).
In a report dated July 3, 2012, Dr. Mazzara stated that he had used the fifth edition of the
A.M.A., Guides. He stated that the A.M.A., Guides provided guidelines, not rules, as to a
permanent impairment rating. Dr. Mazzara opined that an impairment between 11 and 15
percent would be reasonable.
By decision dated February 5, 2013, OWCP issued a schedule award for an 11 percent
right arm permanent impairment. The period of the award was 34.32 weeks from June 14, 2011.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the

2

permanent impairment of the scheduled member or function.3 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
With respect to a shoulder impairment, the A.M.A., Guides provides a regional grid at
Table 15-5. The class of impairment CDX is determined based on specific diagnosis and then
the default value for the identified CDX is determined. The default value (grade C) may be
adjusted by using grade modifiers for GMFH, Table 15-7, GMPE, Table 15-8 and GMCS, Table
15-9. The adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6
ANALYSIS
In the present case, the attending orthopedic surgeon, Dr. Mazzara, provided an opinion
that appellant had a 15 percent permanent impairment in his June 14, 2011 report. As to the
percentage of impairment, this opinion is of diminished probative value. As noted above, the
sixth edition of the A.M.A., Guides must be used to determine the impairment. Dr. Mazzara
indicated in his July 3, 2012 report that he had used the fifth edition for his impairment rating.
OWCP properly referred the case to its medical adviser.7 In the February 26, 2012
report, the medical adviser applied the sixth edition of the A.M.A., Guides. The shoulder
regional grid at Table 15-5 provides a 10 percent grade C (default) arm impairment for status
post distal clavicle resection of the AC joint.8 The impairment is then modified in accord with
the formula noted above. The medical adviser assigned a grade modifier 1 (mild) for GMFH and
GMPE, with a grade modifier 2 for GMCS. Since CDX for the distal clavicle resection is 1, the
adjustment formula is (1-1) + (1-1) + (2-1). Therefore the net adjustment is +1 or a grade D
impairment, which is 11 percent under Table 15-5.9
The Board finds that OWCP’s medical adviser is the only physician of record to apply
the sixth edition of the A.M.A., Guides and his report represents the weight of the medical
evidence. Although Dr. Mazzara opined the A.M.A., Guides were not a set of rules, under
3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

A. George Lampo, 45 ECAB 441 (1994).

5

FECA Bulletin No. 09-03 (March 15, 2009).

6

The net adjustment is up to +2 (grade E) or -2 (grade A).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f)(February 2013) (after obtaining the necessary medical evidence, the file is referred to an OWCP
medical adviser for an opinion as to the nature and extent of the impairment).
8

A.M.A., Guides 403, Table 15-5.

9

Id.

3

FECA a schedule award must be based on a proper application of the sixth edition of the
A.M.A., Guides. The medical adviser applied the specific provisions of Table 15-5 and the net
adjustment formula. The Board finds that the probative evidence of record does not establish
more than an 11 percent right arm permanent impairment.
The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the arm, the maximum
number of weeks of compensation is 312 weeks. Since appellant’s impairment was 11 percent, he
is entitled to 11 percent of 312 weeks or 34.32 weeks of compensation. The period of the award
commences with the date of maximum medical improvement,10 which Dr. Mazzara indicated was
June 14, 2011. Appellant may request an increased schedule award at any time before OWCP and
submit new and relevant evidence with respect to an increased permanent impairment.
CONCLUSION
The Board finds that OWCP properly found appellant had an 11 percent permanent
impairment to this right upper extremity based on the evidence of record.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2013 is affirmed.
Issued: January 13, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

Albert Valverde, 36 ECAB 233, 237 (1984).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Middle Village, NY, Employer
__________________________________________

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

Docket No. 17-1113
Issued: September 15, 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 May 1, 2017 appellant, through counsel, filed a timely appeal from a March 10, 2017
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.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury on November 4, 2015 causally related to factors of her federal employment.
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.

FACTUAL HISTORY
On November 6, 2015 appellant, then a 32-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) for a right arm condition that allegedly arose in the performance of
duty on November 4, 2015. She reportedly experienced pain in her right shoulder, elbow, and
hand, which she attributed to pushing a mail cart and delivering mail. Appellant stopped work
on November 6, 2015 and received continuation of pay.
In an attending physician’s report (Form CA-20) dated November 5, 2015, Dr. Neofitos
Stefanides, an attending Board-certified orthopedic surgeon, listed the date of injury as
November 4, 2015 and the history of injury as continuous pushing and pulling of a mail cart. He
diagnosed cervical spine sprain/radiculopathy, right shoulder impingement/bursitis, right elbow
sprain, and right thumb sprain. Dr. Stefanides checked a box marked “Yes” indicating that the
diagnosed conditions were caused or aggravated by the described employment activity. In a
form entitled Authorization for Examination And/Or Treatment (Form CA-16) dated
November 5, 2015, he listed the history of injury as repetitive and continuous pushing of a mail
cart, diagnosed cervical spine radiculopathy, and checked a box marked “Yes” indicating that the
diagnosed condition was caused or aggravated by the described employment activity.
Dr. Stefanides found total disability from November 4 to December 4, 2015.
In a November 6, 2015 narrative report, Dr. Stefanides indicated that appellant reported
she was delivering mail while pushing and pulling a heavy mail cart on November 4, 2015 and
felt a burning pain which radiated from her right neck down through her right shoulder, elbow,
wrist, and thumb. He listed the mechanism of injury as “continuous and repetitive pulling,
pushing, maneuvering mail cart with right arm” and noted that appellant denied any prior
injuries. Dr. Stefanides reported the findings of his November 6, 2015 physical examination
noting that appellant had 4/5 strength and intact sensation in her upper extremities, and
tenderness to palpation in her right shoulder, elbow, and finger (unspecified digit). He diagnosed
neuritis/radiculitis of the cervical region/upper limbs, shoulder impingement, bursitis, finger
sprain/strain, and elbow sprain/strain and found that appellant was temporarily totally disabled
from her usual work activities. Dr. Stefanides provided an opinion that, based on her history,
physical examination, and x-ray findings, appellant’s physical injuries were causally related to
“the accident noted above.”
In a duty status report (Form CA-17) dated November 6, 2015, Dr. Stefanides listed the
date of injury as November 4, 2015 and noted that appellant reported feeling pain in her right
shoulder, elbow, and hand while delivering mail on that date. He listed the “diagnosis due to
injury” as cervical spine radiculopathy and indicated that appellant was temporarily totally
disabled. In a November 20, 2015 form entitled work capacity evaluation (Form OWCP-5c),
Dr. Stefanides indicated that appellant could not work. Appellant was unable to engage in any
lifting, carrying, pushing, or pulling.
The employing establishment controverted appellant’s claim for a November 4, 2015
work injury. In a November 10, 2015 letter, a human resources management specialist with the
employing establishment noted that while appellant advised Dr. Stefanides that she had no prior
injuries, appellant had previously filed claims with OWCP, including a claim for an October 7,
2014 right arm injury assigned OWCP File No. xxxxxx446 which OWCP denied. The

2

employing establishment representative further noted that appellant did not report her claimed
November 4, 2015 injury until November 6, 2015.
In a November 16, 2015 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim. It asked her to complete a questionnaire which
posed various questions regarding her work duties on November 4, 2015 and the nature of her
claimed injury. On November 16, 2015 OWCP also requested additional information from the
employing establishment.
In a December 3, 2015 statement, appellant indicated that the mail cart she used on
November 4, 2015 had no brakes and that she had to apply force to make the cart stop when
going down hills. She reported that she pushed and pulled the cart for about four hours on that
date. Appellant indicated that she did not report her claimed November 4, 2015 injury sooner
because she initially thought her symptoms were from a prior accident. She also noted that
Dr. Stefanides had previously treated her for a right elbow injury from 2014. Appellant clarified
that Dr. Stefanides had not previously treated her for cervical sprain/radiculitis.
OWCP also received additional medical evidence. A November 20, 2015 cervical
magnetic resonance imaging (MRI) scan revealed straightening of the cervical lordosis without
listhesis, degenerative disc disease at C4-5 and C5-6, and small central disc protrusions at C4-5
and C5-6 without cord deformity, central canal stenosis, or foraminal stenosis.
In a November 20, 2015 report, Dr. Stefanides indicated that he saw appellant in his
office on November 20, 2015 and noted that the clinical evaluation showed that she had a
herniated nucleus pulposus of a cervical disc and neuritis/radiculitis of the cervical region/upper
limbs. He reported that appellant’s neck and right upper extremity symptoms were of cervical
etiology and that cervical sprain/radiculitis was the only pathology causally related to “this work
accident.” Dr. Stefanides indicated that he had not previously treated appellant for a cervical
pathology, although he had previously treated her for an elbow pathology which had a “separate
location and distinct etiology for pain.” He posited that appellant’s neck and right upper
extremity pain were likely due to a pinched nerve in her neck.
In a November 20, 2015 Form CA-17, Dr. Stefanides listed the date of injury as
November 4, 2015 and noted that appellant reported feeling pain in her right shoulder, elbow,
and hand while delivering mail on that date. He listed the “diagnosis due to injury” as cervical
spine radiculopathy and indicated that appellant was temporarily totally disabled. In a
December 4, 2015 Form CA-17, Dr. Stefanides also found that appellant was temporarily totally
disabled due to the reported November 4, 2015 injury. On December 4, 2015 he reported
findings of his examination on that date and noted that appellant still reported persistent cervical
spine and right upper extremity pain.
In a December 22, 2015 decision, OWCP denied appellant’s claim for a November 4,
2015 work injury. It accepted that she experienced work factors in the form of pushing/pulling a
mail cart and delivering mail on that date, but found that she failed to submit sufficient medical
evidence to establish a causal relationship between the accepted work factors and a diagnosed
medical condition. OWCP noted that the medical reports submitted by appellant, those of
Dr. Stefanides, did not contain a rationalized medical opinion on causal relationship.

3

Following the decision, OWCP received additional medical evidence.
In a November 17, 2015 form report entitled Initial Examination, Dr. John J. McGee, a
Board-certified physiatrist, noted that appellant reported feeling right arm pain after delivering
mail with a cart on November 4, 2015. He provided findings on examination and diagnosed
cervical sprain/strain, cervical radiculitis, and right shoulder impingement syndrome.
Dr. McGee answered “Yes” in response to a question regarding whether the described incident
was “the competent medical cause of this injury/illness” and indicated that appellant was totally
disabled.
In a December 9, 2015 report, Dr. Mark B. Eisenberg, a Board-certified neurosurgeon,
noted that Dr. Stefanides had referred appellant to him and indicated that appellant reported that
about one month prior she pushed a heavy cart and felt pain in her neck which radiated down her
right upper extremity. He discussed appellant’s November 20, 2015 MRI scan of the cervical
spine and recommended that she continue with physical therapy and pain management.
In a State of New York form dated December 28, 2015, Dr. McGee listed a date of injury
of November 4, 2015, diagnosed cervical neuritis or radiculitis, neck sprain/strain, and
unspecified derangement of shoulder joint, and found 100 percent disability. He checked a box
marked “Yes” indicating that the described incident was “the competent medical cause of this
injury/illness.” On January 25, 2016 Dr. McGee diagnosed cervical region radiculopathy, sprain
of cervical spine ligaments, and other specific joint derangements of right shoulder. He indicated
that appellant was totally disabled.
In Forms CA-17 dated December 30, 2015 and January 29, 2016, Dr. Stefanides listed
the date of injury as November 4, 2015 and noted that appellant reported feeling pain in her right
shoulder, elbow, and hand while delivering mail on that date. He listed the “diagnosis due to
injury” as right cervical radiculitis and indicated that appellant was temporarily totally disabled.
On February 26, 2016 Dr. Stefanides diagnosed shoulder impingement, bursitis, and neck
sprains/strains.3
In a State of New York form report dated January 25, 2016, Dr. Dani Stekel and Dr. Arie
Cohen, attending Board-certified chiropractors, provided diagnoses of sprain of cervical spine
ligaments and contracture of muscle (unspecified).4 Appellant also submitted reports from
attending physical therapists who described physical therapy sessions conducted between
November 19 and December 22, 2015.
On December 12, 2016 appellant, through counsel, requested reconsideration of OWCP’s
December 22, 2015 decision. He resubmitted copies of appellant’s physical therapy and
chiropractic treatment records.

3

A February 26, 2016 right shoulder MRI scan revealed tendinosis of the supraspinatus and subscapularis
tendons, fluid at the biceps tendon sheath and glenohumeral joint, and laterally downsloping type II acromial
configuration.
4

Both reports were countersigned by another chiropractor, Dr. John H. Kraft.

4

In a March 10, 2017 decision, OWCP denied modification of its December 22, 2015
decision denying appellant’s claim for a November 4, 2015 work injury. It noted that the new
reports submitted by appellant did not contain a rationalized medical opinion relating a
diagnosed medical condition to the accepted work factors.
LEGAL PRECEDENT
A claimant seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.6
To determine if an employee 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.7 The second component is whether the employment incident caused a
personal injury.8 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.9
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.10
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.11 Additionally, chiropractors are considered physicians only to
the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray.12
5

Supra note 2.

6

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

11

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
12

5 U.S.C. § 8101(2); see Kathryn Haggerty, 45 ECAB 383, 389 (1994).

5

ANALYSIS
Appellant filed a traumatic injury claim alleging that on November 4, 2015 she sustained
an injury to her right arm due to pushing/pulling a mail cart and delivering mail at work. In
December 22, 2015 and March 10, 2017 decisions, OWCP denied appellant’s claim. However,
it accepted that appellant experienced work factors in the form of pushing/pulling a mail cart and
delivering mail on that date, but found that she failed to submit sufficient medical evidence to
establish causal relationship between the accepted work factors and a diagnosed medical
condition.
The Board finds that appellant failed to submit sufficient medical evidence to establish
causal relationship between the accepted work factors of November 4, 2015, i.e., pushing/pulling
a mail cart and delivering mail, and a diagnosed medical condition.
In a Form CA-20 dated November 5, 2015, Dr. Stefanides, an attending physician, listed
the date of injury as November 4, 2015 and the history of injury as continuous pushing and
pulling of a mail cart. He diagnosed cervical spine sprain/radiculopathy, right shoulder
impingement/bursitis, right elbow sprain, and right thumb sprain. Dr. Stefanides checked a box
marked “Yes” indicating that the diagnosed conditions were caused or aggravated by the
described employment activity. Similarly, in a Form CA-16 dated November 5, 2015, he listed
the history of injury as repetitive and continuous pushing of a mail cart, diagnosed cervical spine
radiculopathy, and checked a box marked “Yes” indicating that the diagnosed condition was
caused or aggravated by the described employment activity. Dr. Stefanides found total disability
from November 4 to December 4, 2015.
The Board notes that the submission of these reports do not establish appellant’s claim for a
November 4, 2015 work injury because the reports lack sufficient probative value on this matter.
The Board has held that when a physician’s opinion on causal relationship consists only of
checking a box marked “Yes” to a form question, without more by the way of medical rationale,
that opinion has little probative value and is insufficient to establish causal relationship.
Appellant’s burden includes the necessity of furnishing an affirmative opinion from a physician
who supports his or her conclusion with sound medical reasoning.13 As Dr. Stefanides did no
more than check a box marked “Yes” to a form question, his opinion on causal relationship is of
little probative value and is insufficient to discharge appellant’s burden of proof. He did not
discuss the accepted November 4, 2015 work factors in any detail or describe the medical process
through which they could have been competent to cause or aggravate the diagnosed conditions.
Dr. Stefanides did support his opinion with objective findings on physical examination or
diagnostic testing.
In a November 6, 2015 narrative report, Dr. Stefanides indicated that appellant reported
she was delivering mail while pushing and pulling a heavy mail cart on November 4, 2015 and
felt a burning pain which radiated from her right neck down through her right shoulder, elbow,
wrist, and thumb. He diagnosed neuritis/radiculitis of the cervical region/upper limbs, shoulder
impingement, bursitis, finger sprain/strain, and elbow sprain/strain and found that appellant was
13

Lillian M. Jones, 34 ECAB 379, 381 (1982).

6

temporarily totally disabled from her usual work activities. Dr. Stefanides provided an opinion
that, based on her history, physical examination, and x-ray findings, appellant’s physical injuries
were causally related to “the accident noted above.” This report is of limited probative value on
the relevant issue of this case because Dr. Stefanides did not provide an adequate explanation for
his opinion on causal relationship. The Board has held that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion on causal relationship
which is unsupported by medical rationale.14 Although Dr. Stefanides generally referenced
appellant’s history, physical examination, and x-ray findings15 in support of his opinion, he did
not describe which specific aspects of these factors led him to conclude that appellant sustained a
work injury on November 4, 2015.
In Forms CA-17 dated November 6, 20, December 4, 30, 2015, and January 29, 2016,
Dr. Stefanides listed the date of injury as November 4, 2015 and noted that appellant reported
feeling pain in her right shoulder, elbow, and hand while delivering mail on that date. He listed
the “diagnosis due to injury” as cervical spine radiculopathy and indicated that appellant was
temporarily totally disabled. These reports of are of limited probative value with respect to
whether appellant sustained a November 4, 2015 work injury because Dr. Stefanides did not
provide any medical rationale in support of his opinion that appellant sustained a cervical
condition on that date.16
In a November 20, 2015 report, Dr. Stefanides indicated that appellant’s cervical
sprain/radiculitis was the only pathology casually related to the November 4, 2015 “accident”
and posited that appellant’s neck and right upper extremity pain were likely due to a pinched
nerve in her neck. This report is of limited probative value because Dr. Stefanides did not
explain how the accepted November 4, 2015 work factors could have caused or aggravated such
a pinched nerve. He did not present objective findings to support his opinion on causal
relationship.17
In a November 17, 2015 form report, Dr. McGee, an attending physician, noted that
appellant reported feeling right arm pain after delivering mail with a cart on November 4, 2015.
He diagnosed cervical sprain/strain, cervical radiculitis, and right shoulder impingement
syndrome. Dr. McGee answered “Yes” in response to a question regarding whether the
described incident was “the competent medical cause of this injury/illness” and indicated that
appellant was totally disabled. In a December 28, 2015 form report, he listed a date of injury of
November 4, 2015, diagnosed cervical neuritis or radiculitis, neck sprain/strain, and unspecified
derangement of shoulder joint, and found 100 percent disability. Dr. McGee checked a “Yes”
box indicating that the described incident was “the competent medical cause of this
injury/illness.” The Board notes that these reports contain opinions on causal relationship which
are of limited probative value in that Dr. McGee only checked a “Yes” box or answered “Yes” in
14

C.M., Docket No. 14-88 (issued April 18, 2014).

15

The Board notes that Dr. Stefanides did not reference any diagnostic test findings in his report.

16

Supra note 14.

17

Id.

7

response to a form question without providing medical rationale in support of his opinions.18
Merely placing a checkmark in the “Yes” box will not suffice for purposes of establishing causal
relationship.19 Dr. McGee did not discuss the accepted November 4, 2015 work factors in any
detail or describe the medical process through which they could have been competent to cause or
aggravate the diagnosed conditions.
In forms dated January 25, 2016, Dr. Dani Stekel and Dr. Arie Cohen, attending
chiropractors, provided diagnoses of sprain of cervical spine ligaments and contracture of muscle
(unspecified). However, these reports do not support appellant’s claim for a November 4, 2015
work injury because they do not constitute probative medical evidence within the meaning of
FECA. Under section 8101(2) of FECA, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.20 OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.21 The January 25, 2016 reports of Drs. Stekel and Cohen do not
constitute probative medical evidence because they do not indicate that findings of subluxations
were demonstrated by x-rays to exist.
Appellant also submitted reports from attending physical therapists who described
physical therapy sessions conducted between November 19 and December 22, 2015. However,
physical therapists are not considered physicians under FECA and therefore their opinions do not
constitute medical opinion evidence and have no weight or probative value on medical matters.22
For these reasons, appellant has not established a November 4, 2015 work injury and
OWCP properly denied her claim.23
Appellant may submit additional 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.

18

See supra note 13.

19

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

20

5 U.S.C. § 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988).

21

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121, 126 (1990).

22

C.E., Docket No. 14-710 (issued August 11, 2014); Jane A. White, 34 ECAB 515 (1983).

23

Where an employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation,
which does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the
action taken on the claim. See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is
authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP.
See 20 C.F.R. § 10.300(c).

8

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury on November 4, 2015 due to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 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

9