United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Seattle, WA, Employer
__________________________________________

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Appearances:
David Dillard, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1131
Issued: March 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from the November 3, 2008 decision
of the Office of Workers’ Compensation Programs that denied his claim and from a March 6,
2009 decision which denied his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
denied his request for reconsiderations without further merit review under section 8128(a).
FACTUAL HISTORY
On May 8, 2008 appellant, then a 50-year-old mail handler, filed an occupational disease
claim alleging that he developed depression and anxiety due to stress at work. He first became
aware of his condition on May 19, 2006. Appellant did not stop work. On May 12, 2008 the
Office requested a detailed description of the employment factors to which he attributed his
claimed illness.

Appellant responded that his emotional condition began in May 2006 when Gary Huffer
and John Ardis, coworkers, hung signs on trailers that said “Bob Sucks.” Due to continuing
problems with these coworkers, appellant bid out of the work section. On his new section,
however, he became the object of harassment and verbal abuse by Jim Fermo, a coworker and
friend of Mr. Huffer and Mr. Ardis. On March 24, 2008 Mr. Ardis and Don Brady, another
coworker, yelled and cursed at him when he was driving a forklift. On March 25, 2008
Mr. Brady called him a loser and stated “watch where you [a]re going you f---ing moron.” He
alleged that on April 8 and 21, May 6 and 8, 2008, Mr. Fermo had made sounds like a crying
baby and told appellant to move his f---ing forklift. Appellant alleged that on April 23, 2008
Mr. Fermo also called him “numb nuts” and “a--hole.”
Appellant related that on May 8, 2007 he was in the employee parking lot backing up to
park. Mr. Fermo drove behind appellant, honking his horn. After appellant clocked in,
Mr. Fermo told him that he had better watch out when backing up and called him a “mother
f--ker” and “f--king idiot.” He suggested that they speak to the manager of distribution
operations and Mr. Fermo again started verbally accosting him, calling him a “f--king pussy.”
Appellant told Mr. Fermo that he was not a supervisor and he went to work, subsequently
notifying his supervisor of the incident.
On May 9, 2007 Mr. Fermo stated that he was driving in the employee parking lot on
May 8, 2007 when he attempted to pass behind a car. The back up lights came on and the car
started to move towards Mr. Fermo’s truck. He honked his horn and saw that the driver was
appellant. After clocking in, Mr. Fermo stated that he yelled at appellant “that he drives his car
just like his forklift.” He stated that appellant told him, “well, if you weren’t doing 90 miles an
hour in the parking lot you wouldn’t have come so close to hitting me.” Mr. Fermo responded:
“you [a]re the one who came close to hitting me, you dumb f--k.” He related that appellant
became upset and responded: “What gives you the right, you’re not my mother, or my f--king
supervisor, you’re a f--king nobody.” Appellant turned and walked away, at which time
Mr. Fermo stated, “[You [a]re not going to cry, are you.” Mr. Fermo stated that he laughed and
went to work.
The record reflects that the employing establishment investigated the incident in the
parking lot. In a May 15, 2007 investigative interview, appellant noted that on May 8, 2007
Mr. Fermo drove up behind him while in the parking lot and honked his horn. Mr. Fermo
subsequently confronted appellant and called him a stupid “mother f--ker” and “f--king moron.”
Appellant contended that Mr. Fermo routinely created stress through threatening language that
made it difficult for him to come to work. The May 18, 2007 memorandum of Audrey Lyn M.
Baldivino, supervisor of distribution operations, noted that both employees had used obscene
language to each other. She noted that both employees had ongoing problems and she advised
them as to postal policies concerning violence in the workplace. Both employees were given an
official discussion for misconduct and given an offer to seek the Employee Assistance
Program (EAP).
Appellant subsequently alleged additional verbal abuse and threats by Mr. Fermo while
working in the distribution area on September 25, 28, 29 and October 23, 2007. He submitted a
report of threat/assault on October 23, 2007 alleging that Mr. Fermo called him a “f--king idiot.”
The report noted that Mr. Fermo denied the obscenity but acknowledged referring to appellant as

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an idiot twice.1 In a December 14, 2007 investigative interview, Mr. Hooker noted that
Mr. Fermo denied using obscenity towards appellant but contended that his remarks were
intended as fitting putdowns of appellant.
In a May 28, 2008 statement, Mr. Hooker noted that appellant had voiced complaints
about coworkers for years and had problems working with others. Although appellant alleged
that he did not want to go to work or be in the same room as Mr. Fermo; he refused a
reassignment to another section. Mr. Hooker advised that management had investigated and
followed up with discipline as appropriate for each complaint filed by appellant.
On May 20, 2008 while appellant was talking to a coworker, Mr. Fermo approached them
on a forklift and yelled “get out of my way, you [a]re blocking the way, you almost backed into
me, watch what you [a]re doing.” He stated that he reported the incidents to his supervisors,
including Michael A. Hooker, supervisor of district operations.
In medical records dated February 26, 1998 to March 9, 2006, Dr. Gary Henriksen, a
Board-certified internist, noted that appellant was treated for chronic anxiety and depressive
disorder. In an April 11, 2008 report, Dr. Daniel M. Banken, Ph.D., a clinical psychologist,
advised that he had treated appellant since May 2006 for depression. He diagnosed major
depressive disorder.
In a November 3, 2008 decision, the Office denied appellant’s claim, finding that his
emotional condition did not arise in the performance of duty. It found that he failed to provide
sufficient evidence to substantiate his allegations of verbal abuse or a hostile work environment.
On December 12, 2008 appellant requested reconsideration. He submitted a March 18,
2008 Equal Employment Opportunity settlement agreement withdrawing his complaint of
discrimination. It was stipulated that management would have a general standup with
supervisors on how to conduct an official discussion; management would arrange for a speaker
from the district to discuss harassment and violence in the workplace; appellant was paid
$3,000.00 for medical co-pays and time off.
Appellant submitted a July 22, 2008 witness statement from Dave Dillard, a coworker
and union steward, who noted that, on July 21, 2008, appellant approached him in the cafeteria to
discuss a grievance settlement and Mr. Brady proceeded to sift through the plastic recycling bin
taunting appellant. On December 5, 2008 Mr. Dillard noted sitting in the cafeteria when
appellant approached and heard Mr. Fermo stated “duh-ta-doh.”
In a December 5, 2008 letter to the Office, Gene Rezac, local union branch president,
addressed the situation at work. He had been approached in the past by appellant concerning
inappropriate behavior by certain coworkers. Mr. Rezac’s initial advice was that he should just
ignore them; however, he directed appellant to report such instances to management. In early
2006, he spoke with Mr. Ardis and Mr. Huffer, who admitted that some of appellant’s claims
1

An October 24, 2007 questionnaire from Carlos Mosquera, a coworker, noted being verbally abused three times
by Mr. Fermo in 2006 and 2007. On October 24, 2007 Sue Frost, a coworker, noted Mr. Fermo was intimidating
and made inappropriate remarks. An undated note from appellant’s wife stated that she received an undated
anonymous letter advising that appellant was having an affair.

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were true “but they also professed their belief in the righteousness of their actions.” Mr. Rezac
cautioned the men that their beliefs did not conform to postal policy. He addressed the signs
placed around appellant’s immediate work area and from roofs of trailers being loaded in his
work section. Subsequently, appellant attempted to remove himself from his antagonists by
taking another job assignment; however, “there is indeed an anit-[appellant] clique of mail
handlers here whose members are present in several work sections including his new one.”
Mr. Rezac stated:
“[Appellant’s] problems escalated when he began working in the same section as
Mr. Fermo. I did have further conversations with Mr. Fermo about acting out
toward [appellant] but he was entirely too brazen and forthright with me about his
dislike for [appellant]. Mr. Fermo has personally described to me in some detail
and with obvious satisfaction his recollection of several of his attacks on
[appellant]. I have continually chastised him for this and instructed him to refer
his concerns to a supervisor rather than verbally harangue another employee. At
one point this year, he even admitted that he had called [appellant] a ‘f--king
idiot’ for yielding to traffic on his forklift and had called him a ‘f--king moron’
for getting too close to his own forklift. Mr. Fermo also stated that he did n[o]t
think there was anything wrong with what he said since he felt [appellant] was
dangerous in the work environment.”
In a November 11, 2008 statement, Alan Williams, a coworker, noted working with
appellant from 1999 to 2004. He observed numerous conflicts between appellant and Mr. Huffer
and Mr. Ardis without resolution by management. Appellant submitted a statement from
Walter A. Menzl, a coworker, dated December 10, 2008. He witnessed Mr. Fermo drive by on a
forklift and make derogatory remarks to appellant.
In a March 6, 2009 decision, the Office denied appellant’s reconsideration request on the
grounds that his letter neither raised substantive legal questions nor included new and relevant
evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) medical evidence establishing an emotional or psychiatric disorder; (2) factual evidence
identifying those employment factors or incidents alleged to have caused or contributed to the
condition; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to the emotional condition.2
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,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
2

Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

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There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.5 When an employee
experiences emotional stress in carrying out his employment duties, and the medical evidence
establishes that the disability resulted from his 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 emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.6
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to his regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
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.7
The Board has recognized the compensability of verbal altercation or abuse when
sufficiently detailed by a claimant and supported by the evidence of record. This does not imply,
however, that every statement uttered in the workplace will give rise to coverage under the Act.8
In determining whether such instances constitute harassment under the Act, the Board will
review the evidence to determine whether it establishes a persistent disturbance, torment,
persecution or mistreatment of the claimant by coworkers or supervisors.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.11

5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

6

Lillian Cutler, supra note 3.

7

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 3.
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9

See David C. Lindsey, Jr., 56 ECAB 263 (2005).
See Ronad K. Jablanski, 55 ECAB 616 (2005).

10

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

11

Id.

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ANALYSIS -- ISSUE 1
The Office denied appellant’s claim, finding that appellant did not submit sufficient
evidence to substantiate his allegations of harassment and verbal abuse by certain coworkers. Of
note, the claims examiner reviewed the evidence pertaining to the May 8, 2007 incident and
found that appellant’s account differed from that of Mr. Fermo, such that neither account could
be confirmed as having occurred. Similarly, a number of appellant’s other allegations were
rejected as they could not be confirmed by the evidence of record. The Board finds that the case
is not in posture for decision as the Office failed to make sufficient factual findings based on the
evidence of record.
Appellant submitted factual evidence pertaining to his allegations of stress from actions
he characterized as harassment and verbal abuse by coworkers and delineated with specificity
certain incidents to which he attributed his emotional condition. His allegations in this case
cannot be characterized as vague or merely of general difficulties arising in his workplace.12
Appellant’s allegations pertain to repeated incidents involving primarily three coworkers at the
employing establishment on different work shifts. It is obvious from the statements of the
supervisors that certain incidents are confirmed as having taken place. The May 18, 2007
memorandum of Ms. Baldivino supports that the employing establishment investigated the
matter and that certain action was taken to correct the problem existing between the employees.
It is not sufficient for the claims examiner to simply note that Mr. Fermo’s account is in
disagreement with that of appellant; therefore, the incident could not be confirmed. For this
reason, the Board will remand the case to the Office for further development on the issue of
whether appellant established a compensable employment factor with regard to his allegations.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,13 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,14 which provides 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].”

12

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

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b).

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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.15
ANALYSIS -- ISSUE 2
The Office’s March 6, 2009 decision, denied appellant’s reconsideration request, without
conducting a merit review, on the grounds that the evidence submitted neither raised substantive
legal questions nor included new and relevant evidence and was therefore insufficient to warrant
review of the prior decision. The Board finds that the Office abused its discretion in not
reopening appellant’s claim for further merit review.
As discussed, the November 3, 2008 Office decision denied appellant’s claim finding that
he failed to submit sufficient evidence to establish his allegations as factual. Appellant’s
December 12, 2008 reconsideration request was accompanied by evidence relevant and pertinent
to his allegations of harassment and verbal abuse by certain coworkers and an inadequate
response to his complaints by management.
The March 18, 2008 Equal Employment Opportunity settlement agreement withdrawing
appellant’s complaint of discrimination is relevant new evidence. It was stipulated that
management would have a general standup with supervisors on how to conduct an official
discussion, management would arrange for a speaker from the district to discuss harassment and
violence in the workplace, and appellant was paid $3,000.00 for medical co-pays and time off.
This evidence is relevant to the issue of whether management properly responded to his
complaints of harassment by coworkers.
Appellant submitted statements from additional coworkers and union representatives.
This evidence is relevant to the issue of whether he supported his allegations of verbal abuse and
harassment during the period 2006 to 2008. The local union branch president addressed the
situation at work and provided a description of his conversations with appellant, Mr. Ardis,
Mr. Huffer and Mr. Fermo. This is relevant to the issue of verbal abuse and harassment. For
example, Mr. Rezac noted that Mr. Fermo acknowledged calling appellant a “f--king idiot;”
while Mr. Fermo had denied doing so during an investigation of the matter held in October 2007.
Such evidence goes to the credibility of the statements of record and the veracity of the
individuals involved. Such evidence cures some of the deficiencies noted by the Office in the
initial denial of the claim. The January 10, 2008 statement from appellant’s supervisor
Mr. Hooker, described a due process investigation of Mr. Fermo for mistreatment, derogatory
remarks and insults. Mr. Fermo admitted making derogatory remarks to appellant while well
aware of the agency’s policy against workplace violence.
This evidence is relevant to whether appellant has substantiated his allegations of
harassment and verbal abuse and was not previously considered by the Office in denying the
claim. The requirement pertaining to the submission of evidence in support of reconsideration
only specifies that the evidence be relevant and pertinent and not previously considered by the
Office.16 The Board finds that the Office improperly refused to reopen appellant’s claim for
15

Id.

16

See Helen E. Tschantz, 39 ECAB 1382 (1988).

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further review on its merits under 5 U.S.C. § 8128. Consequently, the case will be remanded for
merit review. Following this and such other development as deemed necessary, the Office shall
issue an appropriate merit decision on appellant’s claim.17
CONCLUSION
The Board finds that the case is not in posture for decision on whether appellant
established an emotional condition arising from his federal employment. The Board finds that
the Office abused its discretion by denying his request for reconsideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the March 6, 2009 and November 3, 2008
decisions of the Office be set aside. The case is remanded for further development in accordance
with this decision.
Issued: March 16, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

20 C.F.R. §§ 10.606(b)(2)(i) and (ii) (1999), see also Claudio Vazquez, 52 ECAB 496 (2001).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF THE NAVY, COASTAL
SYSTEMS STATION, Panama City, FL,
Employer
__________________________________________

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

Docket No. 08-871
Issued: February 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 4, 2008 appellant filed a timely appeal from September 13, 2007 and
January 3, 2008 decisions of the Office of Workers’ Compensation Programs, denying his
schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant is entitled to a schedule award for lower extremity
impairment related to an accepted lumbar injury.
FACTUAL HISTORY
The Office accepted that on August 4, 2000 appellant, then a 45-year-old inventory
manager, sustained a lumbosacral strain and an aggravation of degenerative disc disease when he
hit a bump while driving a forklift.

Beginning in 2001 and 2002, appellant was followed by Dr. Douglas L. Stringer, and
Dr. Merle P. Stringer, attending Board-certified neurosurgeons, who both diagnosed lumbar disc
herniations with left-sided L5-S1 radiculopathy. On May 17, 2002 Dr. D. Stringer performed
left L4-5 and L5-S1 laminotomies with nerve root decompression and a left L5-S1 discectomy,
authorized by the Office. Appellant resumed light duty following surgery.1
On May 15, 2003 appellant claimed a schedule award.
Appellant’s left-sided L5-S1 radiculopathy worsened through 2003 and 2004. On
September 20, 2004 Drs. D. and M. Stringer performed bilateral decompression laminectomies at
L5-6 and L6-S1, a bilateral microdiscectomy at L5-6 and anterior and posterior L5-6 fusions and
fixations with screw and cage placement. The Office authorized this surgery. Appellant
returned to light duty in April 2005.2
Drs. D. and M. Stringer submitted reports dated through January 2007, noting appellant’s
lumbar pain with intermittent, spotty loss of pinprick sensation in the lower extremities. They
administered periodic lumbar injections.
In a February 22, 2007 report, Dr. M. Stringer opined that appellant had reached
maximum medical improvement. On examination, he found normal sensation in all extremities.
Dr. M. Stringer diagnosed a Grade 1 L3-4 spondylolisthesis with foraminal stenosis and
mechanical low back pain. He stated that appellant had a 34 percent whole person impairment
due to his lumbar injuries and surgeries, 25 percent based on unspecified edition of the American
Medical Associations, Guides to the Evaluation of Permanent Impairment (hereinafter, “A.M.A.,
Guides”) and 9 percent based on the “Florida Impairment Rating Guidelines.” Drs. D. and M.
Stringer provided progress reports through August 2007 noting intermittent, spotty loss of
pinprick sensation in the lower extremities.
On August 29, 2007 an Office medical adviser reviewed the record to determine
appellant’s eligibility for a schedule award. He opined that Dr. Stringer’s impairment rating
appeared to be a diagnosis-related estimate from the A.M.A., Guides, fifth edition, Table 15-3.3
The Office medical adviser explained that the Federal Employees’ Compensation Act did not
provide for diagnosis-related estimates. He opined that there was no basis for a schedule award
for either lower extremity. The Office medical adviser therefore assessed a zero percent
impairment.
By decision dated September 13, 2007, the Office denied appellant’s schedule award
claim on the grounds that he had not established a ratable impairment of a scheduled member. It

1

By decision dated April 29, 2004, the Office determined that appellant’s actual earnings as a modified inventory
manager beginning on March 31, 2003 properly represented his wage-earning capacity.
2

The Office accepted that appellant sustained a recurrence of disability from August 8, 2006 to midJanuary 2007.
3

A.M.A., Guides 384 (fifth edition), Table 15-3 is entitled “Criteria for Rating Impairment Due to Lumbar Spine
Injury.”

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found that Dr. D. Stringer provided a whole person impairment and a diagnosis-related estimate,
neither of which were provided for under the Act.
In an October 10, 2007 letter, appellant requested reconsideration.
additional evidence.

He submitted

Drs. D. and M. Stringer administered lumbar injections in August and September 2007.
In an October 10, 2007 report, Dr. D. Stringer noted a 3+/5 weakness in major muscle groups of
both legs. In a December 3, 2007 report, Dr. M. Stringer noted intermittent subjective
paresthesias in the lower extremities without objective evidence of nerve root compression.
By decision dated January 3, 2008, the Office denied modification on the grounds that the
evidence submitted was insufficient to warrant modification of the prior decision. It found that
the additional evidence did not contain an impairment rating according to the A.M.A., Guides.
Also, the reports did not provide sufficient detail regarding the nature and extent of the spinal
condition. The Office noted that schedule awards were not payable for impairments of the spine
where there were no related impairments of the extremities.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.7 Because neither the Act nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,8 no claimant is entitled to
such an award.9 However, in 1966, amendments to the Act modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of the Act includes the extremities, a

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. 20 C.F.R. § 10.404; Guiseppe Aversa, 55 ECAB 164 (2003).

7

Henry B. Floyd, III, 52 ECAB 220 (2001).

8

The Act itself specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

9

Vanessa A. Young, 55 ECAB 575 (2004).

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claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.10
ANALYSIS
Appellant sustained an employment-related lumbosacral strain and an aggravation of
degenerative disc disease on August 4, 2000. He underwent multi-level lumbar discectomies and
fusions on May 2002 and September 2004.
Appellant claimed a schedule award on
May 15, 2003. However, he did not submit sufficient medical evidence establishing that he
sustained a ratable impairment to a scheduled member of the body.
Dr. M. Stringer, an attending Board-certified neurosurgeon, submitted a February 22,
2007 report opining that appellant had reached maximum medical improvement. He opined that
appellant had impairments of the spine equal to a 34 percent whole person impairment,
according to the A.M.A., Guides and a state rating guideline. However, as set forth above, there
is no provision under the Act for a schedule award due to impairment of the back. Also, a
schedule award is not payable for an impairment of the whole person.11 Additionally, there is no
provision under the Act for the use of impairment rating systems other than the A.M.A.,
Guides.12
Appellant would be entitled to a schedule award for lower extremity impairment caused
by the accepted lumbar injury.13 Dr. D. Stringer, an attending Board-certified neurosurgeon,
submitted an October 10, 2007 report noting 3+/5 weakness in major muscle groups of both legs.
In reports from 2005 to 2007, Drs. D. and M. Stringer found intermittent loss of pinprick
sensation in the lower extremities. However, neither physician submitted an impairment rating
utilizing the appropriate portions of the A.M.A., Guides, setting forth a ratable impairment of the
lower extremities based on weakness, loss of sensation or other deficit. Thus, appellant has not
established entitlement to a schedule award.
CONCLUSION
The Board finds that appellant has not established a ratable lower extremity impairment
related to an accepted lumbar injury.

10

Id.

11

Paul A. Zoltek, 56 ECAB 325 (2005).

12

See supra note 5.

13

See Vanessa A. Young, supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 3, 2008 and September 13, 2007 are affirmed.
Issued: February 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 11-1395
Issued: September 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 26, 2010 appellant filed a timely appeal from the December 17, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her request
for reconsideration. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision. The
Board has no jurisdiction to review OWCP’s October 19, 2010 merit decision denying
appellant’s recurrence claim, as she filed her appeal more than 180 days after the date of that
decision.2 The only issue the Board may review on this appeal, therefore, is whether OWCP
properly denied appellant’s request for reconsideration.

1
2

5 U.S.C. § 8101 et seq.

The latest date to appeal OWCP’s October 19, 2010 decision was April 18, 2011. Appellant filed her appeal a
month later.

ISSUE
The issue is whether OWCP properly denied appellant’s December 1, 2010 request for
reconsideration, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 12, 2007 appellant, then a 34-year-old rural carrier, sustained an injury in the
performance of duty, while casing mail, she reached up high and felt something pinch in the right
side of her neck. OWCP accepted her claim for a cervical disc herniation and paid compensation
for temporary total disability on the periodic rolls.
On February 17, 2009 appellant returned to work at no wage loss in a modified
assignment the postmaster created specifically for her. In a decision dated May 20, 2009, OWCP
determined that her actual earnings in this modified assignment fairly and reasonably represented
her wage-earning capacity in the open labor market. Appellant demonstrated the ability to
perform restricted duties for more than two months.3
Appellant stopped work on July 6, 2010 and claimed compensation for total disability
through August 23, 2010. She saw Dr. Kurt Voss, a Board-certified orthopedic surgeon, the next
day. Dr. Voss noted that appellant showed no significant improvement following a shoulder
injection. He held her off work pending a magnetic resonance imaging (MRI) scan of the right
shoulder. The August 3, 2010 MRI scan showed mild acromioclavicular degenerative changes
with small inferiorly directed osteophytes. There was also mild subacromial subdeltoid bursitis
and mild bursal surface fraying of the supraspinatus fibers. Appellant again claimed
compensation for total disability from August 28 to October 8, 2010.4
In a decision dated October 19, 2010, OWCP denied appellant’s claim for wage-loss
compensation on the grounds that the evidence was insufficient to establish that the claimed
recurrence of disability was due to her accepted work injury. It explained that a recurrence of
disability was defined as an inability to work after an employee had returned to work, caused by
a spontaneous change in the a medical condition that resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.
OWCP further explained that increased subjective complaints were insufficient to show a
material worsening of the accepted medical condition: “Objective evidence (physical findings,
x-rays, etc.) must be submitted with your doctor’s medical reasoning of how and why your
injury-related medical condition has materially worsened.” Noting the belief of the doctor that
appellant had also injured her shoulder on January 12, 2007, OWCP denied expansion of her
claim to include the right shoulder.
On December 1, 2010 appellant requested reconsideration of OWCP’s October 19, 2010
decision. She stated that her doctor “had this form and his office lost it and finally called me that
they had found my paperwork.” Appellant stated that she was injured and in a lot of pain. She
3

Appellant accepted another modified assignment on June 1, 2009.

4

Appellant’s claim for wage-loss compensation thus appears to be for a closed period of about three months.

2

submitted a copy of OWCP’s October 19, 2010 decision. Appellant highlighted language stating
that medical documentation must show a material worsening of the accepted work-related
condition, and how her doctor had failed to explain how the injury-related condition materially
changed to the point that she could no longer perform the physical requirements of the position
she held when she stopped work on July 6, 2010. OWCP received a copy of the MRI scan
ordered by appellant’s doctor, a study it originally received in August 2010.
In a decision dated December 17, 2010, OWCP denied appellant’s request for
reconsideration. It found that the request met none of the standards for reopening her claim for a
merit review.5
On appeal, appellant argues that her doctor noted from the beginning that she had pain in
her neck, shoulder and arm. She indicated that she had submitted a statement from her doctor
explaining that she did not have a new injury; she was just getting worse. Appellant stated that
the employing establishment did not honor her restrictions, and that the hard work she did made
her condition worse. She added that she went to a doctor for all the stress this has been causing
her. She stated that she had post-traumatic stress disorder, severe depression and anxiety with
panic attacks. Appellant referred to a second-opinion examination in 2008, which found that she
had cervical radiculopathy but on the opposite side from her original problem, which was gone,
so it was difficult to tell exactly what relationship the new radiculopathy had to the original
problem. Appellant states that she has new medical information that she will submit to the
Board, but the Board may not consider new evidence on appeal.6
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.7 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.8

5

On December 22, 2010 after the denial of appellant’s request, OWCP received a duty status report dated
December 6, 2010. As this evidence was not before OWCP when it issued its December 17, 2010 decision, the
Board has no jurisdiction to review it on appeal. The Board has no jurisdiction to review new evidence. 20 C.F.R.
§ 501.2(c)(1). Appellant may submit new evidence to OWCP together with a request for reconsideration, as
described in the appeal rights attached to OWCP’s October 19, 2010 decision. She has until October 19, 2011 to file
a timely request for reconsideration of that decision.
6

See 20 C.F.R.§ 501.2(c)(1).

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606.

3

A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.9 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.10
ANALYSIS
Appellant made her December 1, 2010 request for reconsideration within one year of
OWCP’s October 19, 2010 merit decision denying her recurrence claim. Her request was
therefore timely. The question is whether appellant’s request met one of the three standards for
obtaining a merit review of her case.
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law. She did not advance a relevant legal argument not previously
considered by OWCP. Instead, appellant stated that she was injured and experienced pain. She
indicated that her doctor had found some paperwork, a form his office had lost. A claimant may
be entitled to a merit review by submitting relevant and pertinent new evidence not previously
considered by OWCP, but appellant submitted no such evidence to support her request for
reconsideration. Appellant submitted a copy of OWCP’s October 19, 2010 decision, but that
was not new. OWCP received a copy of the August 2010 MRI scan, but that evidence was
duplicative of evidence previously received and considered by it. Evidence that repeats or
duplicates evidence already in the record has no evidentiary value and constitutes no basis for
reopening a case.11 Evidence that does not address the particular issues involved also constitutes
no basis for reopening a case.12
The underlying issue in appellant’s case is whether her total disability beginning July 6,
2010 was a result of what happened at work on January 12, 2007, while casing mail, she reached
up high and felt something pinch in the right side of her neck. She must show that the accepted
employment injury -- a cervical disc herniation -- materially worsened such that she could no
longer perform the specific duties of her modified assignment. Appellant must show that the
January 12, 2007 employment injury also resulted in injury to her right shoulder, and that it was
an employment-related right shoulder injury that kept her off work from July to October 2010.
These are both medical issues that must be resolved by probative medical opinion evidence.
OWCP addressed both these issues and reviewed the relevant evidence in its October 19, 2010
merit decision. Appellant submitted nothing further that was new or relevant to these issues.

9

Id. at § 10.607(a).

10

Id. at § 10.608.

11

Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984).

12

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

4

As appellant’s request for reconsideration did not meet one of the standards for obtaining
a merit review of her case, the Board finds that OWCP properly denied her request. The Board
will therefore affirm its December 17, 2010 decision.
Appellant argues on appeal that she complained of right shoulder pain from the
beginning. Her doctor confirmed that she had evidence of cervical radiculopathy, but this is not
the same as an injury to the right shoulder. It is a cervical spine injury with neurological
symptoms radiating from the cervical spine to the right shoulder and arm. Appellant refers to a
second-opinion doctor in 2008. Dr. Voss found that the cervical radiculopathy to the right
shoulder and arm was now gone and replaced with radiculopathy to the opposite side. The
evidence submitted does not explain, in a convincing way, how appellant’s disability for work
from July to October 2010 was a result of what happened on January 12, 2007. Appellant
submitted no new medical opinion evidence from her physician.
Appellant notes on appeal that the employing establishment did not honor her
restrictions, and that the hard work she did made her condition worse. She is thereby describing
not a recurrence of disability, not a spontaneous change in her cervical disc herniation, but a new
injury, an intervening injury caused by new exposure to working conditions. Appellant is free to
pursue a claim for a new injury, but that would be separate from the recurrence claim OWCP
adjudicated on October 19, 2010. She adds that she is suffering from psychological problems.
Appellant is also free to pursue a consequential injury claim, essentially that the January 17,
2010 cervical disc herniation was such that it led to the development of a diagnosed
psychological injury, but again, that would be separate from the recurrence claim OWCP
adjudicated on October 19, 2010.
CONCLUSION
The Board finds that OWCP properly denied appellant’s December 1, 2010 request for
reconsideration. Appellant’s request did not meet one of the three standards for obtaining a merit
review of her case.

5

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
W.D., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
MEDICAL COMMAND,
Fort Leonard Wood, MO, Employer
_________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Debra Hauser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1297
Issued: August 23, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 21, 2015 appellant, through counsel, filed a timely appeal from a March 13,
2015 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits and schedule award eligibility effective May 31, 2014 pursuant to 5
U.S.C. § 8106(c).
FACTUAL HISTORY
OWCP accepted that on August 9, 2005 appellant, then a 41-year-old paramedic,
sustained a lumbar sprain and a recurrent herniated L5-S1 disc3 with myelopathy when he
prevented a patient from falling off a collapsing ambulance gurney. Appellant did not return to
work following the injury. He remained under medical treatment. After using leave, appellant
received wage-loss compensation beginning on June 29, 2006.
On May 9, 2008 Dr. W. Blake Rodgers, an attending Board-certified orthopedic surgeon,
performed an L5-S1 decompression, L5-S1 discectomy, partial vertebrectomies at L5 and S1,
and reconstruction and fusion from L5 to the sacrum using bone allograft and a fixation device.
OWCP authorized the procedures. Appellant’s case was placed on the periodic rolls effective
June 8, 2008.4
Dr. Peter M. Klara, a Board-certified neurosurgeon, performed a revision surgery on
January 30, 2009, with removal of right-sided pedicle instrumentation, decompressive L5-S1
laminectomies, left-sided interbody fusion, fixation rod and screw implants, and bone allograft.
OWCP authorized the procedures. As the surgeries did not alleviate appellant’s symptoms, he
underwent implantation of a permanent spinal cord stimulator on October 19, 2010, approved by
OWCP.
On April 25, 2011 OWCP obtained a second opinion from Dr. Michael Clarke, a Boardcertified orthopedic surgeon, who opined that appellant could perform modified sedentary work
for “perhaps four hours a day.” A June 21, 2011 functional capacity evaluation indicated a
sedentary work capacity.

3

Appellant underwent bilateral L5-S1 laminectomies and discectomies on April 17, 2011. He had a history of
two rotator cuff surgeries, with residual bursitis on the left demonstrated by November 29, 2006 imaging studies.
Appellant also had a history of left eye surgeries, a ventricular septal defect, and supraventricular tachycardia.
4

On July 23, 2008 the employing establishment offered appellant a job as an accounting technician. Appellant
declined the offer on August 4, 2008. By decision dated October 27, 2008, OWCP terminated his wage-loss
compensation benefits and schedule award eligibility effective that day under 5 U.S.C. § 8106(c)(2), finding that he
refused an offer of suitable work. It affirmed the termination by decisions dated May 6 and July 30, 2009, and
March 23 and April 23, 2010. By decision dated December 17, 2010, OWCP affirmed the termination, but directed
additional medical development. Following such development, it reinstated appellant’s case on the periodic rolls
retroactive to October 28, 2008.

2

Appellant relocated from Missouri to Florida in late June 2011. He remained under
medical treatment.5
On July 18, 2012 OWCP obtained a second opinion from Dr. William Dinenberg, a
Board-certified orthopedic surgeon. Dr. Dinenberg reviewed the medical record and a statement
of accepted facts. On examination, he noted negative straight leg raising tests bilaterally, normal
strength in both lower extremities, limited lumbar motion, and a normal gait. Dr. Dinenberg
opined that the accepted injuries had resolved, and that appellant could return to restricted duty.
In an August 13, 2012 supplemental report, he added a diagnosis of postlaminectomy syndrome.
Dr. Dinenberg recommended a work-hardening program.
In an August 21, 2012 report, Dr. Mark R. Jones, an attending osteopath Board-certified
in family practice, opined that appellant was “both physically and psychologically ready to return
to work as a paramedic with no restrictions.”6
As appellant’s physician and the second opinion specialist both opined that appellant
could work, OWCP referred appellant for vocational rehabilitation services on
September 13, 2012. The vocational rehabilitation counselor noted on October 24, 2012 that
appellant’s Missouri paramedic license expired in 2009 and Florida did not offer reciprocity.
Appellant expressed interest in returning to work as a paramedic, but in a warm climate, as cold
temperatures aggravated his back pain.
A December 20, 2012 functional capacity evaluation demonstrated that appellant could
perform work at a very heavy physical demand level, meeting “the physical demand
requirements of a Paramedic,” including lifting up to 100 pounds. Testing was performed in an
environment of 76 degrees Fahrenheit.
On review of the functional capacity evaluation, Dr. Dinenberg opined on February 18,
2013 that it was uncertain if appellant could work in a cold weather environment, but that he had
no other physical limitations. However, as appellant had not worked for five years,
Dr. Dinenberg directed that appellant limit his schedule to four hours a day for several weeks,
progressing gradually to an eight-hour workday.
In a May 25, 2013 letter, appellant advised the vocational rehabilitation counselor that he
would not accept a job in a cold weather environment.
On June 21, 2013 the employing establishment advised the vocational rehabilitation
counselor that it could not offer appellant a paramedic position as a job category reclassification
would result in a prohibited promotion. Instead, on July 29, 2013 the employing establishment
offered appellant a job as an office automation clerk at his former duty station in Missouri. The
position entailed sedentary clerical work, carrying items weighing less than 10 pounds, walking,
bending, and standing.
5

A January 23, 2012 lumbar computerized tomography (CT) scan showed a stable L5-S1 fusion, and foraminal
stenosis from L3 to S1. An April 11, 2012 lumbar myelogram showed impingement of the L5-S1 nerve roots
bilaterally, left greater than right, and postoperative changes.
6

Appellant participated in physical therapy from October to December 2012.

3

Appellant declined the job on August 4, 2013, contending that he needed additional
lumbar surgery, and could not work or reside in a cold weather environment. He provided a
July 11, 2013 report from Dr. James B. Billys, an attending Board-certified orthopedic surgeon,
recommending hardware removal due to pedicle screw impingement on the left L4-5 facet.7
In an August 21, 2013 letter, OWCP advised the employing establishment that the office
automation clerk job offer was not suitable work as it was “for a site outside of [appellant’s]
residential area, and we have not received any documentation to support that [the employing
establishment] first searched for suitable employment in [appellant’s] geographic area before it
settled for a position outside of it.”
In a September 3, 2013 memorandum, the employing establishment advised OWCP that
it contacted several employing establishment agencies in appellant’s geographic area regarding
the availability of paramedic positions. Four agencies responded, two in Florida and two in
Georgia. None had available paramedic positions.
Dr. Billys noted on November 19, 2013 that appellant had undergone a revision of his
spinal cord stimulator. He recommended a foraminotomy and removing the L5-S1 fixation
hardware on the right.
On January 17, 2014 OWCP obtained a second opinion from Dr. Fanourios I. Ferderigos,
a Board-certified orthopedic surgeon, regarding the need for additional surgery and to determine
appellant’s work capacity. Dr. Ferderigos reviewed the medical record and statement of
accepted facts. He obtained x-rays which he opined demonstrated no loosening or breakage of
the L5-S1 fixation hardware. On examination, Dr. Ferderigos observed restricted lumbar
motion, bilaterally negative straight leg raising tests, and no antalgic gait. He opined that the
accepted injuries had resolved and that appellant did not have postlaminectomy syndrome. No
additional surgery was indicated. Dr. Ferderigos opined that appellant was able to return to work
as a paramedic, although the functional capacity evaluation did not indicate if appellant could
perform under extreme weather conditions. He limited appellant to lifting, pulling, and pushing
50 pounds, less than the 75- to 100-pound lifting requirement for the paramedic position.
In a February 25, 2014 letter, OWCP advised appellant that the offered office automation
clerk position was suitable work, and of the penalty provisions under FECA for refusing an offer
of suitable work. It noted that the position was within the restrictions prescribed by
Dr. Ferderigos. OWCP also explained that appellant’s unwillingness to relocate was not a valid
reason for refusal as the employing establishment confirmed on September 3, 2013 that “no
suitable work [was] available in [his] current commuting area.” It allowed appellant 30 days to
accept the position without penalty. The employing establishment confirmed that the job
remained open and available.
In a March 20, 2014 letter, appellant, through counsel, contended that Dr. Ferderigos was
not competent to offer a neurologic opinion. OWCP responded by April 15, 2014 letter,
7

On September 4, 2013 an OWCP medical adviser reviewed the medical record and opined that the proposed
hardware removal was unlikely to be successful, as the previous four lumbar surgeries did not improve appellant’s
condition.

4

explaining that Dr. Ferderigos’ opinion was sufficient to establish the offered position as suitable
work. Also, the 50-pound lifting restriction imposed by Dr. Ferderigos, and appellant’s
contentions regarding adverse weather conditions, precluded his employment as a paramedic.
Appellant was afforded 15 days to accept the office automation clerk position or face termination
of his wage-loss compensation and schedule award eligibility.
Appellant then submitted an April 24, 2014 report from Dr. Jones, noting that appellant
had not required opiate pain medication since moving to Florida, and should “live and work in a
warmer climate for medical purposes.”8
OWCP extended the May 1, 2014 deadline to May 16, 2014 due to a clerical error in
forwarding appellant’s attorney a copy of the case record. The employing establishment
confirmed on May 1, 2014 that the office automation clerk position in Missouri remained open
and available.
In a May 7, 2014 letter, appellant, through counsel, contended that the offered position
remained unsuitable, as there were no current records showing that work as unavailable in
appellant’s commuting area. On May 12, 2014 she requested selection of an impartial specialist
to resolve a conflict of medical opinion between Dr. Ferderigos and appellant’s physicians
regarding his work capacity and the need for additional surgery.
By decision dated May 29, 2014, OWCP terminated appellant’s wage-loss compensation
benefits and schedule award eligibility effective May 31, 2014 under section 8106(c)(2) of
FECA, finding that he refused an offer of suitable work. It found that his relocation was not a
valid reason for refusing the offer, as the employing establishment had confirmed on
September 3, 2013 that there were no positions available in his current commuting area.
In February 13 and 17, 2015 letters, appellant, through counsel, requested
reconsideration. She contended that Dr. Ferderigos’ opinion was too vague and equivocal to
represent the weight of the medical evidence, and that appellant’s physicians indicated that
appellant should not work in a cold environment. Appellant submitted December 17, 2014 and
February 4, 2015 reports from Dr. Jones, noting that appellant functioned “much better in the
warmer climate” due to reduction of pain symptoms.
By decision dated March 13, 2015, OWCP affirmed the May 29, 2014 decision, finding
that the additional evidence submitted was insufficient to outweigh or create a conflict with
Dr. Ferderigos’ opinion, or otherwise establish that the offered position was not suitable work.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits. It has authority under section 8106(c)(2) of FECA to terminate
compensation for any partially disabled employee who refuses or neglects to work after suitable
work is offered. To justify termination, OWCP must show that the work offered was suitable,
8

Counsel also provided a June 7, 2011 slip from Dr. Jones noting that appellant should “move to a warmer
climate for medicinal purposes.”

5

that appellant was informed of the consequences of his refusal to accept such employment and
that he was allowed a reasonable period to accept or reject the position or submit evidence or
provide reasons why the position is not suitable.9 Section 8106(c)(2) of FECA provides that a
partially disabled employee who refuses or neglects to work after suitable work is offered to,
procured by, or secured for the employee is not entitled to compensation.”10
OWCP regulations provide factors to be considered in determining what constitutes
“suitable work” for a particular disabled employee, include the employee’s current physical
limitations, whether the work is available within the employee’s demonstrated commuting area,
the employee’s qualifications to perform such work and other relevant factors.11 The issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.
If possible, the employing establishment should offer suitable employment in the location
where the employee currently resides. If this is not practical, it may offer suitable reemployment
at the employee’s former duty station or other location.12
Section 8106(c) will be narrowly construed as it serves as a penalty provision, which may
bar an employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.13 Section 10.517(a) of FECA’s implementing regulations provide that an
employee who refuses or neglects to work after suitable work has been offered or secured by the
employee, has the burden of showing that such refusal or failure to work was reasonable or
justified.14 Pursuant to section 10.516, the employee shall be provided with the opportunity to
make such a showing before a determination is made with respect to termination of entitlement
to compensation.15

9

See Ronald M. Jones, 52 ECAB 190, 191 (2000); see also Maggie L. Moore. 42 ECAB 484, 488 (1991), reaff’d
on recon., 43 ECAB 818, 824(1992). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.4 (June 2013) (The claims examiner must make a finding of
suitability, advise the claimant that the job is suitable and that refusal of it may result in application of the penalty
provision of 5 U.S.C. § 8106(c)(2) and allow the claimant 30 days to submit his or her reasons for abandoning the
job. If the claimant submits evidence and/or reasons for abandoning the job, the claims examiner must carefully
evaluate the claimant’s response and determine whether the claimant’s reasons for doing so are valid).
10

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

11

Rebecca L. Eckert, 54 ECAB 183 (2002).

12

20 C.F.R. § 10.508. See also S.H., Docket No. 15-329 (issued June 5, 2015).

13

Joan F. Burke, 54 ECAB 406 (2003); see Robert Dickerson, 46 ECAB 1002 (1995).

14

20 C.F.R. § 10.517(a); Ronald M. Jones, 52 ECAB 190 (2000).

15

Id. at § 10.516.

6

ANALYSIS
OWCP accepted that appellant sustained a lumbar sprain and recurrent L5-S1 disc
herniation, necessitating 2008 and 2009 surgeries, and implantation and revision of a spinal cord
stimulator. Appellant relocated from Missouri to Florida in 2011. In 2012, Dr. Jones, an
attending osteopath Board-certified in family practice, and Dr. Dinenberg, a Board-certified
orthopedic surgeon and second opinion physician, opined that appellant could return to work in
his date-of-injury position as a paramedic. OWCP then referred appellant for vocational
rehabilitation. Appellant expressed interest in returning to work as a paramedic, but only in a
warm weather environment.
The employing establishment offered appellant an office automation clerk position at his
former duty station in Missouri. The job was sedentary, with lifting less than 10 pounds.
Appellant declined the offer because he did not wish to return to a cold weather environment,
and he asserted his lumbar condition had worsened. In September 2013 the employing
establishment contacted federal agencies in Florida and Georgia, and determined that there were
no paramedic positions available. OWCP then obtained a second opinion from Dr. Ferderigos, a
Board-certified orthopedic surgeon, who imposed a 50-pound lifting restriction that precluded
appellant from working as a paramedic.
OWCP advised appellant of FECA’s penalty provision for refusing suitable work.
Appellant continued his refusal, contending that the employing establishment failed to document
that office automation clerk positions were unavailable in his current commuting area. OWCP
terminated appellant’s wage-loss compensation benefits and schedule award eligibility effective
May 31, 2014, finding that the employing establishment documented on September 3, 2013 that
there were no paramedic positions available in his current commuting area. Following
submission of additional medical evidence, OWCP affirmed the termination on March 13, 2015.
The Board finds that the offered office automation clerk position was within the medical
restrictions provided by Dr. Ferderigos. It was therefore medically suitable work, but it also
required appellant to relocate from Florida to his former duty station in Missouri.
As stated above, if the job offer is for a site outside of the claimant’s residential area, the
employing establishment must document that it first searched for suitable employment in the
claimant’s current geographic area.16 In this case, the employing establishment determined that
as of September 3, 2013, there were no paramedic positions available in appellant’s commuting
area, including Florida and Georgia. However, this search was for the wrong job. The suitable
employment position was as an office automation clerk, not a paramedic. There is no evidence
of record that the employing establishment searched for office automation clerk positions in
appellant’s commuting area.
Accordingly, the Board finds that the offered position was not suitable. The employing
establishment did not conduct the required search in appellant’s current commuting area. It
searched for an entirely different job. OWCP thus failed to meet its burden to justify imposing
16

Federal (FECA) Procedure Manual, Part 2 -- Claim, Job Offer and Return to Work, Chapter 2.814.4(a)(2)
(June 2013).

7

the penalty under 5 U.S.C. § 8106(c)(2). The Board will, therefore, reverse OWCP’s March 13,
2015 decision.
On appeal, counsel asserts that OWCP did not document any attempt to find appellant
employment in a warm climate or in his commuting area as required under 20 C.F.R.
§ 10.500(b), as recommended by attending physicians and the second opinion physician. As
stated above, OWCP improperly failed to perform a current and proper search for suitable
employment in appellant’s geographic area. The March 13, 2015 decision must therefore be
reversed.
Counsel also contended that OWCP’s reliance on Dr. Ferderigos’ opinion was a violation
of due process and elementary fairness, because his opinion was vague, contradictory, and in
clear conflict with those of appellant’s physicians.17 She also alleged that OWCP engaged in
“doctor shopping” to “secure a medical opinion that will justify a termination of his benefits
even while a conflict of medical opinion remains in his case.”18 The Board notes that as the
termination must be reversed, these contentions are moot.
CONCLUSION
The Board finds that appellant did not refuse an offer of suitable work. OWCP did not
establish that the work offered to and refused by him was suitable. Although the weight of the
medical opinion evidence established the position’s medical suitability, the evidence failed to
establish that the employing establishment conducted any current search for suitable employment
in appellant’s geographic area.

17

Counsel cited to P.P., Docket No. 12-970 (issued November 6, 2012).

18

Counsel cited to William C. Iadipaolog, 39 ECAB 530 (1988), and Warren E. Armbruster, 39 ECAB
132 (1987).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 13, 2015 is reversed.
Issued: August 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 08-2195
Issued: June 10, 2009

Case Submitted on the Record

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

JURISDICTION
On August 6, 2008 appellant filed a timely appeal from February 12 and July 23 2008
merit decisions of the Office of Workers’ Compensation Programs, denying her emotional
condition claim and an April 29, 2008 nonmerit decision, denying her request for an oral hearing.
Under 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 appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied appellant’s request for an oral
hearing.
FACTUAL HISTORY
On August 10, 2006 appellant, then a 46-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained anxiety, stress and depression as a result
of discrimination, harassment and disparaging treatment at the employing establishment. She

noted that she was under duress to sign another job offer and was told to leave work if she did
not sign. Appellant stopped work July 26, 2006.1
By letter dated September 13, 2006, the Office requested that appellant provide additional
information regarding her claim within 30 days. Appellant, however, did not submit any
evidence. In a November 13, 2006 decision, the Office denied the claim, finding that appellant
did not establish that the claimed incidents occurred as alleged.
On December 7, 2006 appellant requested reconsideration. In a November 25, 2006
letter and several undated statements, she alleged that management gave her multiple modified
job offers and changed her off days without following the proper procedures. On April 19, 2006
appellant stated that her supervisor, Diamond Allen, gave her a modified job offer that was
intentionally outside of her work restrictions. The offer was presented at 6:00 a.m. and appellant
was told to sign and return it before leaving work, which was at 6:30 a.m. Ms. Allen told
appellant to go home when appellant advised her that she was not signing the job offer.
Appellant indicated that Ms. Allen often told employees who disagreed with her to go home.
She stated that Mary Gordon, an acting manager, called her later that day to find out why she did
not sign the April 19, 2006 job offer. When appellant pointed out that the job offer was at the
main employing establishment, where she could not work, Ms. Gordon advised that she would
change the location. She alleged that Ms. Gordon stated that she could have Sunday off.
Appellant signed the job offer on April 24, 2006. She stated that Ms. Allen incorrectly prepared
the job offer and Ms. Gordon corrected it. Appellant denied going behind Ms. Allen’s back and
did not appreciate being in the middle of Ms. Allen and Ms. Gordon trying to “out do or undo the
other.” Following this, she alleged that Ms. Allen told her that she was going to change her off
days back and presented her with another job offer on May 6, 2006. Appellant alleged that
incomplete job offers were mailed to her at home to harass her. She further alleged that
Ms. Allen did not go through Ms. Gordon or Injury Compensation. Appellant received multiple
job offers after she signed the April 24, 2006 offer, which was confirmed by a notification of
personnel action indicating that she was placed in modified job offer effective April 29, 2006.
On May 19, 2006 appellant was provided with a new modified job offer, with corrected
scheduled days off. On July 27, 2006 she was presented the May 19, 2006 job offer again.
Appellant alleged that an acting supervisor was instructed by Ms. Allen that appellant should
either sign the job offer or go home. She left work and did not return until October 2, 2006.
Appellant indicated that leaving work caused her undue stress, anxiety and depression. She
alleged that Ms. Allen was harassing her and had created a very hostile environment. On
November 9, 2006 appellant was again presented with the May 19, 2006 job offer. She indicated
that Tunya Hill, an acting manager, gave her a letter which advised that, as of November 18,
2006, appellant was to adhere to the May 19, 2006 modified job offer and her off days would be
Saturday and Friday. Appellant contended that the May 19, 2006 modified job offer was illegal
and her rights were violated. On November 13, 2006 she stated that she was informed by an
acting supervisor that her off days were changed in the computer system, which was illegal. On

1

The employing establishment removed appellant from employment on March 21, 2008 due to failure to be
regular in attendance, failure to follow instructions, and failure to meet requirements of position.

2

November 1, 2006 appellant alleged that she performed the duties of three people and other
employees were not required to perform extra work.
On November 23, 2006 appellant reported to work at 10:00 p.m. She stated that Ms. Hill
asked why she was at work as her schedule was changed. Appellant was told to leave as she was
being taken off the clock. She asked for a representative but was not provided one. Appellant
noted that the police were called and she was escorted from the building by two police officers at
Ms. Hill’s request. Ms. Hill asked for appellant’s badge and told her not to come back until
called. Appellant alleged that this caused injury to her character as well as humiliation and
embarrassment. She stated that Ms. Allen inappropriately touched employees, had inappropriate
relationships with employees, used equipment to make copies of inappropriate material, brought
inappropriate material to work and had biased relationships with employees.
In support of her claim, appellant submitted letters regarding the May 19, 2006 modified
job offer as well as earlier modified job offers; an April 29, 2006 notification of personnel
action; work schedules from April 29 to May 12, 2006; witness statements from coworkers
Selena Johnson, Carolyn Adams, Kadrine Smith, Cocandra Thomas, James Schuller and Tasha
Crowley; and material pertaining to grievances and Equal Employment Opportunity (EEO)
claims.
Medical reports from Brentwood Behavorial Healthcare of MS were also received. In an
August 25, 2006 report, Dr. Krishan K. Gupta, a psychiatrist, noted appellant’s problems with
work and diagnosed adjustment disorder with depressed mood.
In an undated statement, Ms. Allen denied appellant’s allegations of creating a hostile or
stressful working environment. She asserted that she treated all employees fairly and maintained
that the job offers were based on the needs of the service and that appellant’s preference for off
days was determined on the seniority of limited-duty employees.
In a February 12, 2007 letter, Larry Sanders, a human resources manager, advised that
appellant had been on limited duty since 1994 due to bilateral wrist tendinitis. Due to changing
technology and workforce needs, limited-duty job offers were periodically updated to reflect
such changes. Mr. Sanders advised that in 13 years there were about four occasions in which
appellant’s job offer was updated. He stated that she resisted new job offers and usually refused
to sign them. Mr. Sanders noted that appellant had worked for several supervisors and each one
encountered resistance from her. He advised that she refused to adhere to the schedule in her
current job offer and disobeyed orders in reporting to work when she was not scheduled.
Appellant was asked to leave on November 23, 2006 and, when she refused, authorities were
summoned to escort her from the premises. Mr. Sanders denied that the employing
establishment acted inappropriately. In a February 26, 2007 response, appellant asserted that she
was caught in a “power struggle” between managers. She resubmitted copies of modified job
offers and complaint letters; letters from her Senator; a May 18, 2006 memorandum pertaining to
the modified job offer effective April 19, 2006, accepted on April 24, 2006, which was
rescinded; and a copy of an excerpt from an unknown publication defining the terms “undue
influence” and “duress.”

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By decision dated March 20, 2007, the Office denied appellant’s claim finding that she
had not established a compensable factor of employment.
On January 7, 2008 appellant requested reconsideration, contending that her bid job was
“abolished” improperly. She alleged that the letter Ms. Hill gave her was not contractually
sound. Appellant generally alleged that Ms. Hill violated her civil rights when she had two
police officers escort her from the premises. She alleged that she was stripped of her off days,
worked out-of-schedule and did not get paid. In a January 9, 2008 letter, appellant alleged that
letters written by Theressa McQuarter, a manager, and Ms. Allen had used veiled threats against
her. She submitted an undated statement regarding challenging discipline by Mark Cunningham,
a union steward; an August 13, 2007 letter from Ms. McQuarter regarding appellant’s
whereabouts and leave documentation; a January 8, 2008 letter from Ms. Allen regarding the
scheduling of an investigative interview; an August 26, 1997 step 2 grievance decision denying
appellant’s grievance; and a June 20, 2001 letter from Ruben Rodriguez, acting plant manager,
informing appellant that her bid assignment was abolished due to current operational
requirements. Additional medical reports were also submitted.
By decision dated February 12, 2008, the Office denied modification of the March 19,
2007 decision.
In a March 3, 2008 letter, appellant requested a review of the written record. She
reiterated that she was subjected to a hostile work environment. Appellant stated that Ms. Allen
would deliberately greet all employees except her and moved employees from the cases next to
her to alienate her. She stated that Ms. Allen used trivial matters to instigate situations and
several times told appellant to go home. Appellant alleged that she was overworked in the
outgoing operation and that she became unassigned in January 2001 when everyone’s jobs were
abolished. She also alleged that, because she had an occupational injury, managers discriminated
against her in the name of her services being needed. Appellant indicated that she was due
out-of-schedule pay for each Sunday and Monday that she worked going back to March 23 and
24, 1997 and that her time records were falsified. She submitted copies of disciplinary
paperwork regarding a letter of warning and notice of removal; job offers and job
description/availability; copies of grievance paperwork regarding limited-duty work
assignments; copies of personnel paperwork; leave analysis from September 11, 1997; an
“everything report” and pay stubs for pay periods 11 and 12 of 1997; a page from the Employee
& Labor Relations Manual regarding ethical conduct; general correspondence about
unemployment compensation; and medical records from April 21, 1997 to February 14, 2008.
In an April 10, 2008 letter, appellant claimed her medical information was seen by
unauthorized personnel. She was asked to provide medical information directly to a manager as
indicated in an August 2007 letter, but her medical information was reviewed by Personnel
Official Cathy Walters, an attendance supervisor. Appellant also claimed that she gave her
medical information to a supervisor, who left it on the desk and another employee saw it and told
her.
In an April 29, 2009 decision, the Office denied appellant’s request for a review of the
written record as she had previously requested reconsideration on the same issue. Appellant was
advised that she could request reconsideration before the Office.

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On May 6, 2008 appellant requested reconsideration. She alleged that she worked out-ofschedule involuntarily and endured much stress and aggravation.
By decision dated July 23, 2008, the Office denied modification of its prior decisions.
LEGAL PRECEDENT -- ISSSE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to her regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of her work or
her fear and anxiety regarding her ability to carry out her work duties.2 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.3
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.4 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.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 a physician when
providing an opinion on causal relationship and which working conditions are not deemed
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
record establishes the truth of the matter asserted, the Office must base its decision on an

2

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

3

Id.

4

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

5

Kim Nguyen, 53 ECAB 127 (2001).

6

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

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analysis of the medical evidence.7 As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim, but rather, must be corroborated by the
evidence.8 Mere perceptions and feelings of harassment will not support an award of
compensation.9
ANALYSIS -- ISSUE 1
Appellant alleged discrimination, harassment and mistreatment as an employee. She
claimed that, for over six years, Ms. Allen created a stressful and hostile working environment.
To the extent that incidents alleged as constituting harassment by a supervisor are established as
occurring and arising from appellant’s performance of regular duties, these may constitute
employment factors.10 However, for harassment to give rise to a compensable disability under
the Act, there must be evidence that harassment did in fact occur. Mere perceptions of
harassment are not compensable under the Act.11
The evidence of record fails to support appellant’s claim of harassment or retaliation.
She alleged Ms. Allen inappropriately touched employees, had inappropriate relationships with
employees, brought inappropriate material to work and was biased toward certain employees.
The witness statements submitted by appellant are general in nature and do not address the
allegations of a hostile working environment raised by appellant. One witness statement
indicated that Ms. Allen would generally hug male employees and talk to them; however, such
behavior does not establish the allegations of harassment alleged in this case. Ms. Allen denied
any unfair treatment of employees. The factual evidence fails to support appellant’s claim that
she was harassed by her supervisor.12 Appellant asserted that the two letters written by
Ms. McQuarter and Ms. Allen were evidence of harassment as her claim was still not resolved.
She alleged that they used veiled threats before allowing her to respond. However, the file does
not contain sufficient evidence to substantiate these allegations as factored.
Appellant also filed grievances and an EEO claim for harassment and discrimination.
However, the Board notes that grievances and EEO complaints, by themselves, do not establish
that workplace harassment or unfair treatment occurred.13 The evidence of record regarding
appellant’s grievances and EEO complaints does not establish any improper action by her
7

Id.

8

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
9

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

10

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

11

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
12

See Michael A. Deas, 53 ECAB 208 (2001).

13

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

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supervisors or managers. Thus, appellant has not established a compensable employment factor
based on harassment.
Other allegations by appellant relate to administrative or personnel actions. She claimed
that she was provided with multiple modified job offers after she had accepted a modified job
offer. The assignment of work is an administrative matter.14 The Board finds that appellant has
not submitted sufficient evidence to establish error or abuse about the disputed job offers. The
evidence does not establish that her supervisors acted unreasonably in providing the modified job
offers as the needs of the employing establishment changed such it could no longer support the
schedule appellant preferred. While appellant filed grievances and EEO complaints regarding
these allegations, there are no final determinations to establish that the employing establishment
erred or was abusive in carrying out these administrative functions. Mr. Sanders explained the
reasons why appellant’s modified job assignments changed or were eliminated periodically. The
Board has also held that denials by an employing establishment of a request for a different job,
promotion or transfer are not compensable factors of employment under the Act, as they do not
involve an employee’s ability to perform his regular or specially assigned work duties, but rather
constitute a desire to work in a different position.15 The employing establishment has explained
the reasons for its actions in these administrative matters. Appellant has not presented evidence
to support that the employing establishment acted unreasonably. Additionally, the evidence
shows appellant did not actually work in some of the disputed job offers, but rather claimed that
the administrative action of the employing establishment in making such offers caused her
emotional reaction. Thus, any emotional reaction was due to the administrative job offer process
and not to her work duties. Appellant has not established a compensable factor of employment
in this regard.
Appellant alleged that the employing establishment did not provide her with a valid
contract when it advised that she must adhere to the job offer of May 19, 2006 and her off days
would be Saturday and Friday. She claimed that the employing establishment did not follow
proper procedures for changing her off days. Appellant’s dissatisfaction with the administrative
process in the scheduling of workdays positions to administrative or personnel matters unrelated
to her regular or specifically assigned work duties.16 She has presented no evidence to support
that her supervisors, acted unreasonably. The evidence shows that appellant was given several
opportunities to sign job offers but she refused and continued to report to work on unscheduled
days. Additionally, Mr. Sander’s statement supports that the schedule change was made to meet
the needs of the employing establishment. While appellant filed grievances and EEO complaints
regarding her schedule, the evidence of record does not establish error or abuse in these
administrative functions. Thus, she has not established administrative error or abuse in the
performance of these actions and they are not compensable factors.

14

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

15

Donald W. Bottles, 40 ECAB 349, 353 (1988).

16

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).

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Appellant alleged that she suffered an emotional reaction when she was escorted out of
the building by two police officers on November 23, 2006. The record reflects that she was not
scheduled to work on November 23, 2006 and was escorted from the building after she refused
to leave the premises, as requested. As appellant was not scheduled to be at work on
November 23, 2006, any emotional reaction to this incident is self-generated and not in the
performance of duty. There is no evidence showing that the employing establishment acted
unreasonably in this administrative matter.
Appellant alleged that her medical information was reviewed by an unauthorized
personnel official, Ms. Walters, in 1997. A review of the disciplinary paperwork submitted
which Ms. Walters signed indicates that appellant had submitted the medical documentation.
The medical documentation referenced, a September 17, 2007 work excuse note, relates to
appellant’s attendance and disability. Appellant submitted no supporting evidence to show it
was improper for Ms. Walters to see that document in her official capacity. While she
additionally claimed another employee had seen her medical information, which she left on the
supervisor’s desk, she submitted insufficient evidence to substantiate her allegation. Leave
matters are administrative in nature.17 Appellant has not established that the employing
establishment erred in this matter.
Appellant alleged that she worked out-of-schedule. The employing establishment
indicated that she was repeatedly asked to adhere to the specified days and times in the current
job offer, but she continued to report to work as she saw fit. Appellant submitted no evidence to
substantiate her allegation as factual.
Appellant also alleged that she was not paid for some of her work. A review of the
evidence of file, however, does not support this allegation. A review of the “everything report”
and pay stubs for pay periods 11 and 12 of 1997 are consistent in the hours appellant worked and
the hours for which she was paid. Also, the pay stubs reflect earnings for the hours. There is no
evidence which substantiates appellant’s allegation she was not paid for hours worked.
Appellant made a general allegation of overwork. She also stated that she had to do extra
work and other employees were not required to perform extra work. The file, however, does not
contain evidence to substantiate that appellant was assigned and actually performed extra work.
To the extent appellant alleged overwork, this is not established by the evidence.18 She also did
not attribute her emotional condition to performing a specific regular or specially assigned duty
in her job.
Consequently, appellant has not met her burden of proof to establish her claim for an
emotional condition as she has not attributed her claimed condition to any compensable
employment factors.19
17

See Jeral R. Gray, 57 ECAB 611 (2006).

18

The Board has held that overwork, as substantiated by sufficient factual information to support the claimant’s
account of events, may be a compensable factor of employment. Bobbie D. Daly, 53 ECAB 691 (2002).
19

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

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LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act,20 concerning a claimant’s entitlement to a hearing before an
Office representative, states, “Before review under section 8128(a) of this title, a claimant ... not
satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after the
date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”21 The Office’s procedures, which require the Office to exercise its discretion to grant
or deny a hearing when the request is untimely or made after reconsideration, are a proper
interpretation of the Act and Board precedent.22
ANALYSIS -- ISSUE 2
Appellant requested an oral hearing in this case. However, she had previously requested
reconsideration and, therefore, under section 8124(b)(1) of the Act, she was not entitled to a
hearing as a matter of right. The Office properly exercised its discretion and determined that the
matter could equally well be addressed by requesting reconsideration and submitting new
evidence that established that she sustained an injury in the performance of duty.
Therefore, the Office properly denied appellant’s request for a hearing as a matter of right
as she previously requested reconsideration. It also properly exercised its discretion in further
denying appellant’s request for a discretionary hearing.
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty. The Board further finds that the Office properly denied
appellant’s request for a hearing.

20

5 U.S.C. §§ 8101-8193.

21

5 U.S.C. § 8124(b)(1). See 20 C.F.R. § 10.616(a).

22

Claudio Vasquez, 52 ECAB 496 (2001); Herbert C. Holley, 33 ECAB 140 (1981).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 23, April 29 and February 12, 2008 are affirmed.
Issued: June 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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