United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 08-127
Issued: May 7, 2008

Case Submitted on the Record

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

JURISDICTION
On October 11, 2007 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ decisions dated June 29 and October 3, 2007. Under 20 C.F.R.
§§ 501(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim for an additional
schedule award for his left lower extremity impairment on the basis that he refused to undergo a
medical examination; and (2) whether the Office properly refused to reopen appellant’s case for
reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On June 4, 1999 appellant, a 42-year-old mail handler, filed a Form CA-2 claim for
benefits, alleging that he sustained a lower back condition causally related to factors of his
employment. The Office accepted his claim for aggravation of herniated disc at L4-5. The
Office commenced payment for temporary total disability compensation.

On January 28, 2005 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his right lower extremity.
In an August 12, 2005 report, Dr. Robert E. Kynerd, Board-certified in family practice
and appellant’s treating physician, determined that appellant had a nine percent permanent
impairment of his right lower extremity based on nerve root impairment at L3-4, pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides) (fifth edition). He indicated his approval and adoption of a July 12, 2005
evaluation/impairment rating from a physical therapist that relied on Tables 15-16 and 15-18 of
the A.M.A., Guides.
In an impairment evaluation dated December 15, 2005, an Office medical adviser found
that appellant had a five percent permanent impairment of his left lower extremity based on the
A.M.A., Guides. He stated:
“The basis for the impairment rating is unilateral impairment of the S1 nerve root
for sensory deficit and/or pain. The maximum percent loss of function due to
sensory deficit and pain at the S1 nerve root is five percent. This is multiplied by
a Grade 1 sensory loss which is 99 percent. This results in a total of five percent
impairment to this individual’s right lower extremity.”
The Office medical adviser derived this right-sided S1 nerve root impairment based on
Tables 15-15 and 15-18 at page 424 of the A.M.A., Guides.
On May 10, 2006 the Office granted appellant a schedule award for a five percent
permanent impairment of the right lower extremity for the period May 15 to June 22, 2000, for a
total of 14.40 weeks of compensation.
On May 19, 2006 appellant requested an oral hearing, which was held on
January 11, 2007. At the hearing, the hearing representative issued a summary decision in which
he found that there was a conflict in the medical evidence between Dr. Kynerd, appellant’s
treating physician, and Dr. Thompson, the Office medical adviser, regarding the degree of right
lower extremity impairment stemming from appellant’s accepted conditions. The hearing
representative set aside the May 10, 2006 decision and ordered the case to be remanded to the
district Office for further development and clarification from both physicians to explain the
discrepancy in their respective impairment ratings.
In order to resolve the conflict in the medical evidence, the Office referred appellant
together with a statement of accepted facts and the case record, to Dr. Martin P. Jones, a Boardcertified orthopedic surgeon, for an impartial medical evaluation. The referral letter, dated
April 26, 2007, advised appellant that the examination was scheduled for May 31, 2007 and that
under section 8123(d) of the Federal Employees’ Compensation Act, an employee’s right to
compensation was subject to suspension if the employee refuses to submit or obstructs a medical
examination.
By letter dated June 11, 2007, the Office issued a notice of proposed suspension of the
determination of his schedule award based on appellant’s failure to appear at his scheduled

2

examination.1 The Office noted that appellant had been advised in the April 26, 2007 letter that
his right to compensation and a schedule award could be suspended if he refused to submit to a
medical examination. The Office stated that appellant had 14 days to explain why he failed to
keep the appointment with Dr. Jones and that, if he did not respond or if his reasons for refusing
to keep the appointment were found to be unacceptable, the determination of his entitlement to a
schedule award would be suspended until he agreed to submit to the examination as directed.
By decision dated June 29, 2007, the Office denied appellant’s request for an additional
schedule award based on his failure to attend a medical examination scheduled with Dr. Jones.
The Office found that appellant had not responded to the June 11, 2007 letter and had not
rescheduled his missed appointment.
On September 24, 2007 appellant’s attorney requested reconsideration. Accompanying
the letter was documentation from appellant indicating that he had been incarcerated at the
Federal Prison Camp at Talladega, Alabama, for the period February through August 24, 2007.
An August 24, 2007 memorandum from the Federal Bureau of Prisons indicated that appellant
had been released from Birmingham Community Service Center on August 24, 2007.
By decision dated October 3, 2007, the Office denied appellant’s application for review
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT
Section 8123(a)2 of the Act provides:
“An employee shall submit to examination by a medical officer of the United
States, or by a physician designated or approved by the Secretary of Labor, after
the injury and as frequently and at the times and places as may be reasonably
required.... If there is disagreement between the physician making the
examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”
ANALYSIS
In this case, the Office determined that there was a conflict in medical opinion regarding
the degree of right lower extremity impairment appellant had sustained due to his accepted
conditions and scheduled him for an examination by an impartial medical specialist to resolve
the conflict in medical opinion.3

1

The Office indicated in a June 11, 2007 memorandum that Dr. Jones’ office had advised it that appellant did not
show up for his scheduled examination.
2

5 U.S.C. § 8123(a).

3

When a conflict in medical opinion arises, section 8123(a) of the Act requires the Office to appoint a third
physician, also known as a referee or impartial medical specialist. Dallas E. Mopps, 44 ECAB 454, 456 (1993).

3

By letter dated April 26, 2007, the Office referred appellant to Dr. Jones for an
examination scheduled on May 11, 2007. The Office apprised appellant of the requirements for
examination under section 8123(d), which provides: “If an employee refuses to submit to or
obstructs an examination, his right to compensation under this subchapter is suspended until the
refusal or obstruction stops.”4
The Board has held a time must be set for a medical examination and the employee must
fail to appear for the appointment, without an acceptable excuse or reason, before the Office can
suspend or deny the employee’s entitlement to compensation on the grounds that the employee
failed to submit to or obstructed a medical examination.5 In this case, the time for an impartial
medical examination by Dr. Jones was set, appellant was duly advised of his scheduled
appointments and failed to appear. The Office’s Federal (FECA) Procedure Manual provides:
“Failure to Appear. If the claimant does not report for a scheduled appointment,
he or she should be asked in writing to provide an explanation within 14 days. If
good cause is not established, entitlement to compensation should be suspended in
accordance with 5 U.S.C. § 8123(d), until the claimant reports for examination.”6
Following notice that appellant failed to appear for his scheduled examination with
Dr. Jones, the Office in a June 11, 2007 letter, allowed him 14 days to explain why he failed to
keep the May 11, 2007 appointment and advised him that, if he did not respond or if his reasons
were found unacceptable, his entitlement to compensation would be suspended until he agreed to
submit to examination as directed. No response was received. The Office then denied
appellant’s claim for further compensation. The Office did not suspend compensation.
The Board finds that the Office improperly denied appellant’s request for an additional
schedule award. Section 8123(d) of the statute and Chapter 2.810.14(c) of the procedural
manual direct that entitlement to compensation should be suspended until appellant’s refusal or
obstruction of the scheduled examination ceases. The Office, however, rather than suspending
issued a decision on June 29, 2007 denying appellant’s claim which is not in accordance with the
provisions of the Act and the procedure manual governing a claimant’s failure to attend a
scheduled medical examination. Thus, the Office acted improperly in denying appellant’s claim
for an additional schedule award.
CONCLUSION
The Board reverses the Office’s determination denying appellant’s request for an
additional schedule award for his left lower extremity.

4

5 U.S.C. § 8123(d).

5

Margaret M. Gilmore, 47 ECAB 718 (1996); Herbert L. Dazey, 41 ECAB 271 (1989); Delores W. Loges, 38
ECAB 834 (1987).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Suspension of Benefits, Chapter 2.810.14(c)
(January 1992).

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ORDER
IT IS HEREBY ORDERED THAT the June 29, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 7, 2008
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
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Versailles, KY, Employer
__________________________________________

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

Docket No. 10-1990
Issued: May 18, 2011

Case Submitted on the Record

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

JURISDICTION
On July 29, 2010 appellant filed a timely appeal from a February 10, 2010 decision of the
Office of Workers’ Compensation Programs which denied merit review. Because more than 180
days has elapsed since the most recent merit decision dated November 6, 2009 and the filing of
this appeal on July 29, 2010, the Board lacks jurisdiction to review the merits of the claim
pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under section 8128(a).
FACTUAL HISTORY
On June 26, 2005 appellant, then a 36-year-old part-time rural carrier, filed an
occupational disease claim alleging that she developed a right shoulder injury while performing
1

5 U.S.C. §§ 8101-8193.

her letter carrier duties. The Office accepted the claim for right shoulder strain and impingement
syndrome and paid appropriate compensation.2 Appellant stopped work on January 29, 2006 and
did not return.
Appellant was initially treated by Dr. Robert T. Grant, a Board-certified orthopedic
surgeon, beginning July 5, 2005, for right shoulder pain and locking. Dr. Grant diagnosed
impingement and rotator cuff tendinosis of the right shoulder and recommended physical therapy
and light-duty work. On May 25, 2007 he diagnosed subacromial impingement, possible partial
rotator cuff repair, a labral tear, mild arthrosis of the right shoulder and possible peripheral
neuropathy. Dr. Grant recommended surgery. A June 7, 2006 magnetic resonance imaging
(MRI) scan of the right shoulder revealed no abnormalities.
On March 6, 2009 the Office referred appellant to a second opinion examination with
Dr. Stanley W. Collis, a Board-certified orthopedic surgeon, who, in a March 27, 2009 report,
opined that she did not have residuals of her accepted right shoulder and elbow injuries and
could return to work in her preinjury position without restrictions.
On April 20, 2009 the Office issued a notice of proposed termination of all compensation
and medical benefits on the grounds that Dr. Collis’ report dated March 27, 2009 established no
residuals of the work-related conditions.
In an April 30, 2009 statement, appellant disagreed with the notice of proposed
termination and the findings of the second opinion physician. She submitted reports from
Dr. Travis A. Hunt, a Board-certified orthopedic surgeon, dated May 7 and June 25, 2009, who
noted a history of injury and diagnosed right shoulder impingement syndrome.3 Dr. Hunt opined
that appellant still had residuals of impingement syndrome and had not returned to preinjury
status. He noted that appellant could return to work with restrictions. A May 15, 2009 MRI scan
revealed mild supraspinatus tendinopathy without evidence of rotator cuff tear, subacromial
subdeltoid bursitis and mild acromion joint degenerative changes.
Thereafter, the Office found a medical conflict between Drs. Collis and Hunt and referred
appellant to Dr. Daniel D. Primm, Jr., a Board-certified orthopedic surgeon, to resolve the
conflict. In a September 9, 2009 report, Dr. Primm diagnosed right shoulder subacromial bursitis
with impingement syndrome. He could not explain why appellant had not experienced
significant improvement in her right shoulder pain symptoms and bursitis since she had not
worked and performed repetitive duties with the right arm in over two years. Dr. Primm noted
that he could not relate appellant’s current symptoms and need for surgery to her work activities
in 2005 but opined that otherwise it would be reasonable for her to undergo the surgery. He
opined that appellant did not have residuals of her accepted conditions and could return to work
as a part-time carrier, 14.5 hours a week, subject to restrictions unrelated to her work injury.

2

On August 31, 2005 the Office combined the present claim, File No. xxxxxx818, with appellant’s claim
May 23, 2005 an occupational disease claim, File No. xxxxxx823, which was accepted for right epicondylitis.
3

Dr. Hunt advised that appellant related that the right elbow epicondylitis was no longer a problem.

2

By decision dated November 6, 2009, the Office terminated appellant’s compensation
and medical benefits effective November 6, 2009 for the accepted conditions of right rotator cuff
syndrome on the grounds that the weight of the medical evidence established that she had no
continuing disability resulting from her accepted employment injuries.
On February 1, 2010 appellant requested reconsideration. In a February 1, 2010
statement, she noted that Dr. Primm was in agreement with her physician that her diagnosed
conditions were right shoulder subacromial bursitis with impingement syndrome. Appellant
asserted that the claims examiner improperly terminated her compensation based on Dr. Primm’s
report. She noted that Dr. Primm was consulted to determine if her injury resolved and not to
determine if her injury was work related. Appellant noted that the Office improperly noted that
she cancelled surgery in 2007, rather she decided to forego surgery after learning Dr. Primm
wanted to removed a piece of her collarbone. She asserted that Dr. Primm improperly noted that
she worked 14.5 hours a week when her tour was longer. Appellant submitted pay stubs from
pay period 8 in 2004 and pay periods 2, 3, 4, 6, 8, 9, 12 and 15 in 2005 which indicated that she
worked from 27 hours to 71.07 hours a week. Also submitted was a February 27, 2009 statement
of accepted facts with handwritten notes indicating the number of hours she worked in 2005.
In a February 10, 2010 decision, the Office denied appellant’s reconsideration request
finding that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Act,4 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, 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].”5
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.6

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.608(b).

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ANALYSIS
The Office terminated appellant’s compensation and medical benefits on November 6,
2009 based on the opinion of a referee physician, Dr. Primm. In a report dated September 9,
2009, Dr. Primm diagnosed right shoulder subacromial bursitis with impingement syndrome and
opined that he could not relate her current symptoms and a need for surgery to her work
activities in 2005. He opined that appellant did not have residuals of her accepted conditions and
could return to work subject to restrictions unrelated to her work injury. Appellant requested
reconsideration of the November 6, 2009 decision.
As noted above, the Board does not have jurisdiction over the November 6, 2009 Office
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring the Office to reopen the case for review of the merits of the
claim. In her February 1, 2010 application for reconsideration, appellant did not show that the
Office erroneously applied or interpreted a specific point of law. She did not identify a specific
point of law or show that it was erroneously applied or interpreted. Appellant did not advance a
new and relevant legal argument. She disagreed with the findings of the referee physician and
noted that he agreed with her treating physician’s diagnoses of right shoulder subacromial
bursitis with impingement syndrome and that the proposed surgery was appropriate. Appellant
asserted that the referee physician improperly commented on whether her condition was work
related when her shoulder condition was already accepted and his opinion was sought only to
determine is she had residuals of her work injury. However, this assertion does not show error in
applying a point of law as Dr. Primm clearly found that appellant’s present symptoms were not
due to the accepted conditions. The underlying issue in this case, whether appellant had
residuals of her accepted conditions, is a medical issue which must be addressed by relevant
medical evidence.7 A claimant may be entitled to a merit review by submitting new and relevant
evidence, but she did not submit any new and relevant medical evidence in this case. Rather,
appellant submitted intermittent pay stubs from 2004 and 2005 and disputed a February 27, 2009
statement of accepted facts regarding the number of hours she worked.8 This evidence does not
constitute new and relevant evidence.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by the
Office, or submit relevant and pertinent evidence not previously considered. Pursuant to 20
C.F.R. § 10.608, the Office properly denied merit review.
On appeal, appellant reiterated her assertion that Dr. Primm’s report was inadequate to
terminate her compensation benefits based on the deficiencies she noted above. The Board
notes, however, that it only has jurisdiction over whether the Office properly denied a merit
7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

8

Dr. Primm referenced the statement of accepted facts which noted that appellant averaged working 14.5 hours a
week in the year before her injury. The pay stubs submitted by appellant do not encompass the entire year before
she filed her claim and thus do not show an error in the statement of accepted facts. In any event, Dr. Primm noted
that her continuing work limitations were not due to the accepted conditions.

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review of the claim. As explained, appellant did not submit any evidence or argument in support
of her reconsideration request that warrants reopening of her claim for a merit review under 20
C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2011
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, EVANSVILLE
ANNEX, Evansville, IN, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1324
Issued: January 27, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 1, 2021 appellant through counsel, filed a timely appeal from a May 14,
2021, merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 21-1324.
By letter dated January 14, 2022, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

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.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-1324 is dismissed.
Issued: January 27, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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P.T., Appellant
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and
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DEPARTMENT OF THE TREASURY,
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BUREAU OF PRINTING & ENGRAVING,
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Fort Worth, TX, Employer
)
___________________________________________ )
Appearances:
Ditty S. John, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-728
Issued: December 11, 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 January 21, 2009 appellant filed a timely appeal from an October 22, 2008 decision of
the Office of Workers’ Compensation Programs which affirmed a March 3, 2008 decision
denying her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits in this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on October 16, 2007.
FACTUAL HISTORY
On December 14, 2007 appellant, then a 59-year-old secretary, filed a traumatic injury
claim alleging that on October 16, 2007 she received a flu shot in an employing establishment
sponsored program. She had complications as a result of the flu shot which caused injury to her
left arm, lower abdomen, heart, right foot and toes resulting in several surgeries. Appellant
stopped work on October 19, 2007.

Appellant submitted an e-mail from the employing establishment related to
administration of flu vaccines. Employees were advised that flu shots were available and listed
the schedule under which they would be administered at the employing establishment health unit.
A leaflet concerning the flu vaccine was also received, together with a patient acknowledgement
regarding the flu vaccine and clinical notes pertaining to the injection to appellant’s left deltoid.
The Office also received an injection record for allergies.
An October 19, 2007 treatment note from Dr. Randall Perkins, a Board-certified family
practitioner, noted that appellant received a flu shot on October 16, 2007. Appellant was seen on
October 17, 2007 for a 102 degree fever, aching, nausea and a severe right headache.
By letter dated January 7, 2008, the Office informed appellant of the evidence needed to
support her claim. It requested that she submit additional evidence within 30 days.
The Office received medical records from the Medical Center of Arlington dated
October 21 2007 to January 2, 2008. Appellant was hospitalized on October 22, 2007,
underwent several medical procedures and was placed in intensive care. In an October 21, 2007
report, Dr. Maamoun Abou-Qamar, a Board-certified physiatrist and treating physician, advised
that appellant was “admitted for sepsis, after having a flu shot in her left arm. Patient ended up
having more than one organ failure including the lung and ended up intubated.” Appellant was
found to have necrotizing fasciitis and underwent surgery. Dr. Abou-Qamar diagnosed septic
shock, respiratory failure, acute renal failure-resolved, necrotizing fasciitis status post intubation
and post cholecystectomy, fefe, leukocytosis, tachycardia, hypotension, elevated liver function
tests, acalculous chelecystectomy, open wound, metabolic acidosis, rhabdomyolysis, systemic
inflammatory response syndrome, mitral regurgitation, tricuspid regurgitation and mild
concentric left ventricular hypertrophy. In a separate report of October 21, 2007, he noted that
appellant was “in her usual state of health until five days ago when she had her flu shot at work
and the next day started having pain in the site of shot. It started radiating to the shoulder and
elbow. Patient’s pain got worse and then after a day from that, started having fever, chills, and
rigor.”
In an October 22, 2007 report, Dr. Jason Harrison, a Board-certified surgeon, noted that
“appellant was admitted with sepsis after cellulitis likely related to a flu shot.” In a separate
October 22, 2007 report, he indicated that appellant “received a flu-shot in the left upper deltoid.
The patient had normal tenderness after the procedure. This became worse. The patient
presented herself to [the medical center] and within a few hours the patient was septic and in
need of immediate attention.” Dr. Harrison noted findings which included massive necrotizing
fasciitis of the left upper arm, shoulder and back. In an October 23, 2007 report, he noted that
the left deltoid and upper arm areas were better but that appellant was developing blanching
erythema and indurations along the left flank and back. Dr. Harrison performed an incision and
drainage of the flank, with the incision being greater than 30 centimeters. On November 6, 2007
he noted that appellant underwent a laparoscopic cholecystecomy with intraoperative
cholangiogram and a laparoscopic liver biopsy. Dr. Harrison noted that, during appellant’s
hospitalization in intensive care since October 21, 2007, she developed abnormal liver function
studies due to her medications.

2

In a November 9, 2007 report, Dr. Frank Jon Senkowsky, a Board-certified surgeon,
opined that appellant was a “59-year-old lady who was apparently in good state of health until
five days prior to admission, on October 21[, 2007] when she had a flu shot. She apparently
developed left shoulder and arm pain and was admitted with necrotizing fasciitis.” Appellant
underwent several surgeries as well as a cholecystectomy for apparent acalculous cholecystitis.
Dr. Senkowsky advised that appellant had some black toes and had dry gangrene following
prolonged pressor use for treatment of sepsis. He noted that the dry gangrene was not
particularly painful and there was no obvious infection but that she might ultimately need toe
amputations. In a November 13, 2007 report, Dr. Harrison indicated that he performed a
complicated closure of open wounds of the left upper extremity after appellant developed
acalculous cholecystitis following her laparoscopic cholecystecomy and liver biopsy.
In a November 24, 2007 corrected report, Dr. Abou-Qamar noted that appellant was
admitted on October 21, 2007 for “cellulitis after a flu shot, being necrotizing fasciitis,
underwent extensive debridement and open wound by Dr. Harrison.” He advised that appellant
went into septic shock and acute respiratory failure, acute renal failure, and was intubated.
Dr. Abou-Qamar diagnosed necrotizing fasciitis, open wound, debridement and critical care
myopathy and tachycardia. In a January 2, 2008 report, Dr. Senkowsky opined that appellant
developed necrotizing fasciitis from a flu shot. He noted performing a transmetatarsal
amputation on the right foot. The Office also received nurses’ notes and discharge papers dated
December 15, 2007.
By decision dated March 3, 2008, the Office denied the claim for compensation. It found
that appellant did not establish that she was injured in the performance of duty. The Office
found that her participation in obtaining a flu vaccination was purely voluntarily, of personal
benefit and had no bearing on her course of employment.
On March 27, 2008 appellant requested a telephonic hearing, which was held on
July 11, 2008. She contended that her condition arose in the performance of duty. Appellant
alleged that the necrotizing fasciitis (flesh eating bacteria) entered the injection site at the time
the flu shot was administered. After receiving the flu shot, she was not feeling well, the next
day. By Sunday, appellant had to go to the emergency room and was unable to remember
anything for over two weeks. She was placed in intensive care and her vital organs stopped
functioning. Appellant indicated that she had received flu shots for 15 years and never had any
prior adverse reactions. She had to have five toes amputated and the tips of two toes on her left
foot. Appellant had scars all down the left side of her body and lower abdomen and no longer
had complete use of her arms. She believed that obtaining the flu shot through an agency
sponsored health preventative program was in the performance of her duties. In a letter dated
August 5, 2008, appellant reiterated that her claim should be accepted.
By decision dated October 22, 2008, an Office hearing representative affirmed the
March 3, 2008 decision as modified. The Office hearing representative found that the evidence
supported that the claimed events occurred. However, there was no medical evidence that
provided a diagnosis which could be connected to the events.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.5 The employee must also submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.6 The medical evidence required to establish causal relationship is usually
rationalized medical evidence. Rationalized medical opinion evidence is medical evidence
which includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
Appellant alleged that she sustained multiple injuries to her left arm, lower abdomen,
heart, right foot and toes and was forced to undergo several surgeries after receiving the flu shot
as part of a voluntary program while in the performance of duty. The hearing representative
properly found that appellant was in the performance of duty when the October 16, 2007
incident, the inoculation, occurred. This finding is consistent with Office procedures which state

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

See John J. Carlone, 41 ECAB 354, 357 (1989).

6

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

7

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

4

that deleterious effects such as injury while undergoing periodic medical examination, reaction
to agency-sponsored inoculation or disease contracted from instrumentation are compensable.8
The hearing representative, however, denied appellant’s claim for compensation on the
grounds that the medical evidence was not sufficient to establish that appellant’s claimed
conditions were causally related to the October 16, 2007 incident. However, the Board notes that
the medical evidence submitted by appellant generally supports that she became ill and had to be
hospitalized following administration of the shot.
The records reveal that appellant developed numerous conditions immediately after
receiving the flu shot. On October 21, 2007 Dr. Abou-Qamar indicated that appellant was
“admitted for sepsis, after having a flu shot in her left arm.” He noted that she was found to have
necrotizing fasciitis and had to undergo surgery. In separate reports also dated October 21 and
November 24, 2007, Dr. Abou-Qamar noted that appellant was “in her usual state of health until
five days ago when she had her flu shot at work and the next day started having pain in the site
of shot. It started radiating to the shoulder and elbow. Patient’s pain got worse and then after a
day from that, started having fever, chills, and rigor.” He advised that appellant was admitted on
October 21, 2007 for cellulitis after a flu shot, being necrotizing fasciitis.
On October 22, 2007 Dr. Harrison noted that “appellant was admitted with sepsis after
cellulitis likely related to a flu shot.” He explained that appellant received a flu shot and later
became septic and in need of immediate attention. Dr. Harrison determined that appellant had
massive necrotizing fasciitis of the left upper arm, shoulder and back. In reports dated
November 9, 2007 and January 2, 2008, Dr. Senkowsky noted that appellant was a “59-year-old
lady who was apparently in good state of health until five days prior to admission, on
October 21[, 2007] when she had a flu shot.” He opined that appellant developed necrotizing
fasciitis from a flu shot.
Although these reports are not sufficiently rationalized to meet appellant’s burden of
proof in establishing her claim, they stand uncontroverted in the record and are sufficient to
require further development of the case.9 Further development, in a case involving an alleged
reaction to an agency-sponsored inoculation, is also contemplated by Office procedures which
provide that, “following appropriate development, all cases of this type should be referred to a
[d]istrict [m]edical [a]dviser for an opinion on whether the condition claimed was causally
related to the agency medical service.”10
Proceedings under the Act are not adversarial in nature nor is the Office a disinterested
arbiter. While appellant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.11
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.19(a) (March 1994).

9

John J. Carlone, supra note 5; Horace Langhorne, 29 ECAB 820 (1978).

10

Supra note 8 at 2.804.19(e).

11

John W. Butler, 39 ECAB 852 (1988).

5

The Board will remand the case to the Office for referral of the evidence to an Office
medical adviser and for an opinion regarding whether any of conditions that became manifest
after the October 16, 2007 inoculation are causally related to the inoculation shot. Following this
and any other further development as it deems necessary, the Office should issue a de novo
decision.12
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development in
accordance with this decision of the Board.
Issued: December 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

12

In view of the further development directed by the Board it is not necessary to address contentions on appeal by
appellant’s counsel. Appellant also submitted additional evidence on appeal. However, the Board may not consider
new evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 17-1095
Issued: October 25, 2017

Case Submitted on the Record

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

JURISDICTION
On April 21, 2017 appellant filed a timely appeal from an April 13, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated August 25, 2017, the Board
denied the request for oral argument as the Board did not have jurisdiction over the merits of the case and as the
issue on appeal could be fully addressed on the record. Order Denying Request for Oral Argument, Docket No.
17-1095 (issued August 25, 2017).

ISSUE
The issue is whether appellant established that her fall on March 2, 2017 occurred in the
performance of her federal employment.3
FACTUAL HISTORY
On March 6, 2017 appellant, then a 49-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on March 3, 20174 she was overcome by dizziness and fell on her
side. She noted that her knee and elbow hit the floor, which caused pain. Appellant noted that
she was taken to the emergency room. She related that in the emergency room a nurse told her
that her blood pressure was 160/110. The employing establishment controverted appellant’s
claim, contending that further investigation was necessary to determine whether appellant was
injured in the performance of duty or was injured as a result of an idiopathic fall which would
not be compensable.
By letter to appellant dated March 9, 2017, OWCP advised her that further information
was necessary to support her claim, including evidence sufficient to support that the incident
occurred and medical evidence of a diagnosed condition causally related to the alleged incident.
It also provided appellant a questionnaire to complete. Appellant was afforded 30 days to submit
the requested information.
In response, appellant submitted unsigned hospital notes indicating that she was seen in
the emergency department by Dr. Clifford V. Weith, II, a Board-certified emergency room
physician. She was discharged with instructions regarding fainting.
Appellant also submitted copies of employing establishment internal e-mails. In a
March 14, 2017 e-mail, she informed employing establishment officials that for five consecutive
days, she had endured continuous hostility and harassment by a work leader. Appellant alleged
that the work leader stated “don’t speak to me,” “go back where you came from” and made
disparaging remarks about her person as well as the way she dressed. She alleged that this stress
caused her heartbeat to accelerate and her blood pressure to elevate. On March 14, 2017 the
employing establishment sent appellant information with regard to how to file a workers’
compensation claim. In an e-mail dated March 16, 2016, it related that she had resigned that
morning.
Appellant also submitted an undated, unsigned, statement from a supervisor indicating
that there had been issues between appellant and a back-up lead and that appellant believed that
she was working in a hostile environment. The supervisor stated that appellant first mentioned
these issues to her on February 3, 2017. She indicated that she never personally witnessed any
3

The Board notes that appellant submitted new evidence on appeal. However, since the Board’s jurisdiction is
limited to evidence that was before OWCP at the time it issued its final decision, the Board may not consider the
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).
4

Although appellant initially indicated that the fall occurred on March 3, 2017, other evidence establishes that the
incident actually occurred on March 2, 2017. See discussion infra.

2

conflict, but that after speaking with appellant and the lead, both were instructed that they should
not speak to each other, and both complied. The supervisor noted that appellant’s last day
working in her area was February 10, 2017 and that she was moved to another area on
February 13, 2017. She noted that appellant’s fall was on March 2, 2017, not March 3, 2017.
The supervisor noted that appellant came to her office earlier that morning and indicated that she
was stressed about personal issues and also indicated that the job might not have been right for
her. She noted that she had not witnessed appellant’s fall.
By decision dated April 13, 2017, OWCP determined that appellant had not established
that the claimed event occurred as alleged, in the performance of duty. It also noted that she
failed to submit medical evidence in support of her claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed, that an injury was
sustained in the performance of duty as alleged, and that any disability or medical condition for
which compensation is claimed is causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.8 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.9 An employee may establish that the employment incident
occurred as alleged but fail to show that his or her disability or condition relates to the
employment incident.10
As a general rule, an injury is considered to occur in the course of employment if it
occurs at a time when the employee may reasonably be stated to be engaged in her master’s
business, at a place where she may reasonably be expected to be in connection with her

5

Supra note 1.

6

R.A., Docket No. 16-0629 (issued October 19, 2016).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

3

employment, and while she was reasonably fulfilling the duties of her employment or engaged in
doing something incidental thereto.11
One exception to the general rule is if the injury was a result of an idiopathic fall.12 It is a
well-settled principle of workers’ compensation law and the Board has so held that an injury
resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes an
employee to collapse and suffer injury upon striking the immediate supporting surface and there
is no intervention or contribution by any hazard or special condition of employment -- is not
within the coverage of FECA.13 Such an injury does not arise out of a risk connected with the
employment and is therefore not compensable. However, the fact that the cause of a particular
fall cannot be ascertained or that the reason it occurred cannot be explained, does not establish
that it was due to an idiopathic condition. If the record does not establish that the particular fall
was due to an idiopathic condition, it must be considered as merely an unexplained fall, one
which is distinguishable from a fall in which it is definitely proved that a physical condition
preexisted and caused the fall.14 To be considered an idiopathic fall, two elements must be
present: a fall resulting from a personal nonoccupational pathology, and no contribution from
the employment.15
OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature. The fact that the cause of a particular fall cannot be determined does not establish that
it was due to an idiopathic condition and if the record does not establish a particular fall was due
to an idiopathic condition, it must be considered as merely an unexplained fall, which is covered
under FECA.16
ANALYSIS
OWCP denied appellant’s traumatic injury claim, finding that she failed to establish that
the March 2, 2017 incident occurred as alleged. It also determined that there was no evidence of
a medical diagnosis in connection with the alleged March 2, 2017 incident.
The Board notes that OWCP found that appellant had not established that the fall
occurred as alleged, in part, because she indicated on the claim form that the fall occurred on
March 3, 2017, however, her supervisor and hospital records clarified that the fall did occur on
March 2, 2017. The Board has previously noted that an injury does not have to be confirmed by
11

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Moretenson-Kindschi, 57 ECAB 418 (2006);
Eugene G. Chin, 39 ECAB 598 (1988).
12

Roger Williams, 52 ECAB 468 (2001).

13

See Stanley H. Dunihue, Jr., Docket No. 05-1418 (2006); Eugene G. Chin, 39 ECAB 598 (1988); Albert E.
Hermann, Jr., 35 ECAB 167 (1983).
14

M.M., Docket No. 08-1510 (issued November 25, 2008).

15

N.P., Docket No. 08-1202 (issued May 8, 2009).

16

See Jennifer Atkerson, 55 ECAB 317 (2004).

4

eyewitnesses in order to establish the fact that an employee sustained an injury in the
performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and his or her subsequent course of action.17
The employing establishment did not dispute that appellant fell at work and there is
evidence of record from a hospital emergency room physician that appellant sought medical
treatment on March 2, 2017. The only discrepancy of record as to whether appellant’s fall
occurred is whether the fall occurred on March 2, 2017 or March 3, 2017. This discrepancy can
be ascribed to typographic, harmless error.18 The evidence of record thus establishes that
appellant fell at work on March 2, 2017, as alleged.
In addition to establishing that she fell at work, appellant must establish that the fall
occurred in the performance of duty. The general rule is that a fall in the performance of duty is
an unexplained fall, unless the evidence establishes that the fall was due to a personal
nonoccupational pathology. It is not appellant that must show it was an unexplained fall, but
OWCP that must show that it was an idiopathic fall that was caused by a nonemployment-related
condition.19
The Board finds that the record in this case does not support a finding that the fall was an
idiopathic fall due to a personal, nonoccupational pathology. There is no probative evidence as
to the cause of the fall. While appellant has alleged that she was stressed at work, there is no
evidence that she fell due to stress. There is evidence that appellant visited the emergency room
following a fall on March 2, 2017. As noted, it is OWCP’s burden of proof to establish that a
fall was idiopathic. If the evidence does not show that the fall was idiopathic, it is a
compensable unexplained fall. OWCP has not established that the fall was idiopathic as it has
presented no medical evidence that appellant fell due to a preexisting nonoccupational etiology.20
In denying appellant’s claim, OWCP also found that appellant had not established an
injury as a result of the fall. The employee must submit medical evidence to establish that the
employment incident caused a personal injury.21 There is no probative, rationalized medical
report containing a specific diagnosis of a medical condition addressing with rationale how the
condition was caused by her employment incident. By letter dated March 9, 2017, OWCP
17

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984). An
employee has not met his or her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim. Such circumstances as late
notification of injury, lack of confirmation of injury, continuing to work without apparent difficulty following the
alleged injury and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an
employee’s statements in determining whether a prima facie case has been established. However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.
18

See B.S., Docket No. 16-0712 (issued November 7, 2016).

19

R.A., Docket No. 16-0629 (issued October 19, 2016).

20

See M.O., Docket No. 16-0822 (issued August 29, 2016).

21

J.H., Docket No. 11-0933 (issued November 7, 2011).

5

advised appellant that further medical evidence was necessary to establish a diagnosed condition
causally related to the alleged incident. Appellant did not submit medical evidence which
addressed this issue. She has therefore not met her burden of proof to establish that she sustained
a traumatic injury causally related to the accepted incident.22
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has established that she fell on March 2, 2017 and that the
unexplained fall occurred in the performance of duty. The Board finds, however, that appellant
has failed to establish an injury causally related to this accepted incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 13, 2017 is affirmed, as modified.
Issued: October 25, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

22

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Vacaville, CA,
Employer
__________________________________________

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

Docket No. 09-1422
Issued: January 22, 2010

Case Submitted on the Record

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

JURISDICTION
On May 18, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 1, 2009. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established any additional injuries as causally related
to his November 26, 2007 employment incident.
FACTUAL HISTORY
On November 29, 2007 appellant, then a 58-year-old inspector, filed a traumatic injury
claim alleging that he sustained a left knee injury on November 26, 2007 when he twisted while
attempting to sit on an airplane. The claim form indicated that appellant did not initially stop
working. An orthopedic surgeon, Dr. Andrew Landis, provided a November 28, 2007 report
with a history of injury and a diagnosis of left knee strain with synovitis.

A magnetic resonance imaging scan dated February 15, 2008 found a tear of the left
lateral meniscus. In a report dated February 25, 2008, Dr. Chao Sun, an occupational medicine
specialist, provided results on examination and diagnosed a torn lateral meniscus.
In a report dated March 4, 2008, Dr. Lawrence Tkach, provided a history of the
employment incident and stated that appellant had left knee pain and swelling for the past three
or four weeks. Dr. Tkach also noted that appellant had a prior left lateral meniscectomy when he
was approximately 20 years old. He provided results on examination and diagnosed: lateral
compartment degenerative arthritis, left knee greater than right; severe patellofemoral arthritis,
left knee; status post lateral meniscectomy, age of 20; questionable residual tear;
chondrocalcinosis of both knees; and right knee degenerative arthritis, nonindustrial. Dr. Tkach
further stated, “I suspect he has been developing arthritis progressively over the years since that
meniscectomy. It sounds like it became more symptomatic in the industrial setting on 11/25/07
[sic].”
On May 9, 2008 the Office accepted the claim for a left knee sprain. By letter dated
May 12, 2008, the Office advised appellant that additional medical evidence was required to
establish any additional left knee conditions as employment related. Appellant submitted May 2
and August 5, 2008 reports from Dr. Tkach providing results on examination.
By decision dated August 25, 2008, the Office found appellant had not submitted
sufficient medical evidence to establish any additional employment-related conditions.
Appellant requested a telephonic hearing before an Office hearing representative, which was
held on January 13, 2009. He submitted a November 18, 2008 report from Dr. Tkach, providing
results on examination and diagnosing severe lateral knee arthritis with chondrocalcinosis and
patellofemoral chondromalacia.
By decision dated April 1, 2009, the hearing representative affirmed the August 25, 2008
decision. The hearing representative found the medical evidence was insufficient to establish
any additional conditions as employment related.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 In order to establish causal relationship, a physician’s opinion must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment activities.3

1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Gary L. Fowler, 45 ECAB 365 (1994).

2

ANALYSIS
The Office accepted a left knee sprain resulting from the November 26, 2007
employment incident when appellant twisted his knee while attempting to sit on an airplane.
Appellant seeks to establish additional employment-related conditions resulting from the
November 26, 2007 incident. It is, as noted above, his burden of proof to submit rationalized
medical evidence on the issue of causal relationship.
In this case, Dr. Sun diagnosed a lateral meniscus tear, but offered no opinion on causal
relationship with the employment injury. Dr. Tkach provided several diagnoses, including
degenerative arthritis and chondrocalcinosis. He did not, however, provide a rationalized
medical opinion on causal relationship with employment. Dr. Tkach stated that he believed
appellant had been developing arthritis over the years since his prior meniscectomy and it
became “more symptomatic” after the employment injury. To the extent Dr. Tkach is referring
to an employment-related aggravation, he must provide additional explanation and detail
regarding the nature and extent of any aggravation. The medical evidence does not contain an
opinion, based on a complete background, on causal relationship between a diagnosed meniscal
tear, arthritis or other left knee condition and the employment injury, with supporting medical
rationale. It is appellant’s burden of proof, and the Board finds that appellant did not meet his
burden in this case.
CONCLUSION
The Board finds that appellant did not establish any additional left knee conditions as
employment related.

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 1, 2009 and August 25, 2008 are affirmed.
Issued: January 22, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
EILSON AIR FORCE BASE, AK, Employer
__________________________________________

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

Docket No. 09-1757
Issued: March 18, 2010

Case Submitted on the Record

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

JURISDICTION
On June 29, 2009 appellant filed an appeal from the October 10, 2008 and May 20, 2009
decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s request for authorization of
cervical surgery.
On appeal, appellant’s attorney asserts that the decisions are contrary to fact and law.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated July 15, 2009, the
Board remanded the case to the Office to develop whether appellant sustained an emotional

condition as a consequence of his accepted cervical condition.1 The law and the facts of the
previous Board decision are incorporated herein by reference. After further development of the
claim, on November 2, 2009, the Office accepted that appellant sustained an employment-related
depressive disorder.
Concurrently with the development of the emotional condition claim, Dr. Brian V. Curtis,
an attending Board-certified neurosurgeon, requested authorization for posterior cervical
decompression surgery with lateral mass instrumentation and fusion from C3 to C5. He
provided a May 22, 2008 computerized tomography (CT) scan of the cervical spine that
demonstrated spondylitic and discogenic changes throughout the spine causing various degrees
of osseous foraminal narrowing except at C6-7. A June 25, 2008 magnetic resonance imaging
(MRI) scan study revealed evidence of focal myelopathy involving the upper cervical cord at the
C3-4 level with evidence of cord volume loss and cervical spondylosis with moderate regions of
spinal stenosis. In a July 11, 2008 treatment note, Dr. Curtis listed appellant’s complaints of
numbness, tingling, and weakness in his hands and increasing urinary urgency and intermittent
incontinence. He reviewed the CT and MRI scan studies, stating that the MRI scan showed
posterior impingement on the cervical cord and that the CT scan showed an area of either
fracture or incomplete fusion. Dr. Curtis provided physical examination findings, noting diffuse
decreased sensation across the hands, diagnosed slowly progressive cervical myelopathy with
cervical cord injury and impingement. He recommended a decompression surgical procedure,
stating that he believed it was necessary to help prevent further progression.
In reports dated July 19 and August 9, 2008, an Office medical adviser reviewed the
medical record. He advised that the June 25, 2008 MRI scan study provided no reason for the
Office to authorize the recommended surgical procedure, stating that more cervical operative
intervention should be based on a thorough history and a thorough physical examination
germane to the condition for which the operative procedure was being proposed.
The Office found a conflict in medical opinion between Dr. Curtis and the Office medical
adviser regarding the need for additional cervical surgery. On August 18, 2008 it referred
appellant to Dr. Hisham Majzoub, a Board-certified neurosurgeon, for an impartial evaluation.
By report dated September 18, 2008, Dr. Majzoub reviewed the medical record and appellant’s
complaints, stating that he reported no change in his left arm symptoms of numbness and burning
in the prior three months, no change in left arm weakness in the last six months, and no weakness
in the right arm and that his walking had improved over the past six months. Appellant had a
slow but steady gait with minimal clumsiness on rapid rhythmic movements. Motor examination
revealed minimal clumsiness of fine movements in the hands and no arm drift or spasticity,
difficulty rotating his shoulders and that he could not put his arms behind his back. Appellant
had no weakness in the upper arms and minimal clumsiness of fine movements in the hands.
There was no drift and Grade 2 to 3 spasticity in both legs. Sensory examination revealed
normal position sense and vibration in both the arms and legs with decreased pinprick sensation
in both arms up to the shoulders, in the right leg up to the groin and in the left leg up to the knee.
1

Appellant was injured on June 18, 2007 when he fell down a flight of stairs at work. The accepted conditions
are back contusion, cervical spinal stenosis, cervical spinal cord contusion, traumatic right subarachnoid
hemorrhage, concussion with brief loss of consciousness and neurogenic bladder. Appellant underwent cervical
spine fusion surgery on October 31, 2007.

2

Reflexes were 3 to 4+ with positive Hoffman and Babinski signs bilaterally, right worse than
left. Dr. Majzoub reviewed the June 25, 2008 MRI scan, stating that it revealed a stable previous
fusion and what appeared to be a syrinx at C2-3. He advised that appellant had no canal stenosis
of the cervical spine per se to require surgery at the present time and should continue therapy and
conservative treatment. Dr. Majzoub concluded that appellant could not return to his previous
position of transportation assistant or other work to speak of due to the clumsiness of fine
movements of the hands and spasticity and clumsiness that affected his ability to walk. In a
supplementary report dated October 1, 2008, he advised that appellant could not work eight
hours daily, even with restrictions.
By decision dated October 10, 2008, the Office found that Dr. Majzoub’s opinion
represented the weight of medical evidence and denied authorization for posterior cervical
decompression surgery.
Appellant, through his attorney, requested a hearing. In an October 16, 2008 report,
Dr. Curtis noted appellant’s report that his condition has worsened over the prior six months.
Physical examination findings included a spastic gait, moderate difficulty rising from a sitting
position and anxiousness. Dr. Curtis diagnosed spinal cord injury with no further progression on
neurological determination and recommended a physiatrist referral. At the hearing, held on
February 24, 2009, appellant and his wife stated that his condition had worsened. The hearing
representative advised appellant that he should provide a clear report from Dr. Curtis regarding
the need for surgery. The record was left open for 30 days.
In reports dated March 4 and April 3, 2009, Dr. Shan-Liang Liu, a Board-certified
physiatrist, noted many years of history of burning, pain and spasticity in both arms and legs. He
provided examination findings and diagnosed status post-traumatic cervical spinal cord injury
with dysesthesia and spasticity in all extremities. Dr. Liu recommended physical therapy and a
functional capacity evaluation.
In a May 20, 2009 decision, an Office hearing representative affirmed the October 10,
2008 decision.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act2 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.3 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8103; see L.D., 59 ECAB ___ (Docket No. 08-966, issued July 17, 2008).

3

expenditure is incurred for treatment of the effects of an employment-related injury or
condition.4
In interpreting this section of the Act, the Board has recognized that the Office has broad
discretion in approving services provided under section 8103, with the only limitation on the
Office’s authority being that of reasonableness.5 Abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts. It is not enough to merely
show that the evidence could be construed so as to produce a contrary factual conclusion.6 To be
entitled to reimbursement of medical expenses, a claimant has the burden of establishing that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition. Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.7 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the surgery is for a condition causally related to an employment injury and
that it is medically warranted. Both of these criteria must be met in order for the Office to
authorize payment.8
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.9 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an Office medical adviser, the Office
shall appoint a third physician to make an examination. This is called a referee examination and
the Office will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.10 When there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11
ANALYSIS
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Majzoub, the impartial referee physician, who examined appellant, reviewed the medical
4

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

5

See D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

6

Minnie B. Lewis, 53 ECAB 606 (2002).

7

M.B., 58 ECAB 588 (2007).

8

R.C., 58 ECAB 238 (2006).

9

5 U.S.C. § 8123(a); see Y.A., 59 ECAB ___ (Docket No. 08-254, issued September 9, 2008).

10

20 C.F.R. § 10.321.

11

V.G., 59 ECAB ___ (Docket No. 07-2179, issued July 14, 2008).

4

evidence of record and found that the cervical surgery was not medically warranted. In order for
a surgical procedure to be authorized, a claimant must submit evidence to show that the surgery
is for a condition causally related to an employment injury and that it is medically warranted.
Both of these criteria must be met in order for the Office to authorize payment.12 Dr. Majzoub
provided a comprehensive report in which he reviewed the history of medical treatment and
diagnostic studies. Regarding the need for surgery, he stated that the June 25, 2008 MRI scan
demonstrated that the previous fusion was stable. As appellant had no canal stenosis per se
additional surgery was not needed. Dr. Majzoub recommended therapy and conservative
treatment.
As noted, a reasoned opinion from a referee examiner is entitled to special weight.13 The
Board finds that Dr. Majzoub provided a well-rationalized opinion based on a complete
background, his review of the accepted facts and the medical record including the June 25, 2008
MRI scan and his examination findings. Dr. Majzoub’s opinion that the cervical spine surgery
was not medically warranted is entitled to special weight and represents the weight of the
evidence.14
While appellant submitted an October 10, 2008 report in which Dr. Curtis advised that
appellant reported that this condition had worsened, the physician did not address the requested
surgical procedure and recommended referral to a physiatrist. Dr. Curtis was on one side of the
conflict in medical evidence resolved by Dr. Majzoub. His additional report did not address the
issue relevant to this appeal and is insufficient to overcome the weight accorded to the impartial
medical specialist’s report.15 In his March 4 and April 3, 2009 reports, Dr. Liu did not discuss
the need for surgery. His reports are therefore not relevant to the issue in this case. The only
limitation on the Office authority is approving or disapproving service under the Act is one of
reasonableness.16 In the instant case, appellant requested surgery. The Office obtained an
independent medical examination through Dr. Majzoub who clearly found the surgery
unnecessary. It therefore had sufficient evidence upon which it made its decision to deny
surgery, and did not abuse its discretion.17
CONCLUSION
The Board finds that the Office properly exercised its discretion when it denied
authorization for the recommended surgical procedure to appellant’s cervical spine.

12

R.C., supra note 8.

13

V.G., supra note 11.

14

Id.

15

M.S., 58 ECAB 328 (2007).

16

Daniel J. Perea, 42 ECAB 214, 221 (1990).

17

R.C., supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 20, 2009 and October 10, 2008 be affirmed.
Issued: March 18, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.H., Appellant
and
U.S. POSTAL SERVICE, WESTSIDE POST
OFFICE, Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-693
Issued: October 12, 2010

Case Submitted on the Record

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

JURISDICTION
On January 12, 2010 appellant filed a timely appeal from a September 15, 2009 merit
decision of the Office of Workers’ Compensation Programs that denied her claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty causally related to factors of her federal
employment.
On appeal, appellant asserts that she was treated unfairly after her return to work in
June 2008, as shown by the Office’s February 19, 2009 decision.

FACTUAL HISTORY
On November 12, 2008 appellant, then a letter carrier working modified duty four hours a
day, filed an occupational disease claim alleging that the withdrawal of two hours of duty on
October 21, 2008 caused major stress. She stopped work that day. In several statements,
appellant alleged that, since returning to modified duty in June 2008, she had been harassed by
Percy Gilbert, the station manager. Mr. Gilbert manipulated the supervisors, attacked other
employees, caused havoc to her work environment and began to harass her after she filed an
occupational disease claim for a cervical condition. Appellant stated that she was previously
diagnosed with a stress-related condition in 1994 and described symptoms of sleeplessness,
nightmares, aches, pain, tightening in the chest, fatigue and anger.
1

In reports dated October 22, 2008 and January 28, 2009, James R. Moneypenny, Ph.D., a
clinical psychologist, advised that appellant had been under his care since April 22, 2008 for
complaints of emotional stress caused by interpersonal conflicts with supervisors, unfair and
discriminatory treatment and harassment by her employer. He diagnosed adjustment disorder
with mixed emotional features and advised that she be off work indefinitely.
The employing establishment submitted statements dated September 30 and October 20,
2008 in which Mr. Gilbert and Veronica Mitchell, customer service supervisor, advised that
appellant’s performance was substandard. On October 8, 2008 Monica L. Bratton described a
meeting she held with appellant and Mr. Gilbert. Appellant stated that she could not perform her
job due to neck and shoulder problems, get up and down out of her chair or lift heavy tubs of
mail, which were described in her position description. In a letter dated October 20, 2008,
Mr. Gilbert advised appellant that she was to submit a properly completed Form CA-17 for her
knee and ankle injury only and should apply for light duty for work restrictions due to her
cervical and emotional conditions, which were not job related. He noted that a medical report
she submitted was in direct conflict with her current work restrictions; therefore, she would be
given only two hours of work each day with the other two hours covered by leave, until such
time as her other claims were accepted by the Office.
On April 10, 2009 appellant asserted error by Mr. Gilbert was in error on October 21,
2008, as established by a February 19, 2009 Office decision that vacated an August 28, 2008
decision. The August 28, 2008 decision found that appellant’s modified duties represented her
wage-earning capacity. In a March 20, 2009 letter, the Office notified her that the August 28,
2008 decision was vacated and that she was entitled to wage loss from the date her employer
removed her temporary work assignment in October 2008 to February 19, 2009 that she would
be entitled to four hours of compensation after that date.2

1

Appellant has accepted conditions of contusion of the right ankle, old bucket-handle tear of the medial
meniscus, bilateral chondromalacia patellae, bilateral carpal tunnel syndrome and rotator cuff tear of the right
shoulder, adjudicated under Office file number xxxxxx301. She also has a claim for an employment-related cervical
spine condition, adjudicated under Office file number xxxxxx005 that was denied. Appellant has an appeal before
the Board on this claim, Docket No. 10-273.
2

The August 28, 2008 and February 19, 2009 decisions were adjudicated under Office file number xxxxxx301.

2

By decision dated April 28, 2009, the Office denied the emotional condition claim
finding that appellant failed to establish a compensable factor of employment.
Appellant timely requested a review of the written record and, in a September 15, 2009
decision, an Office hearing representative affirmed the April 28, 2009 decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.3 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor.4 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.5
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,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.7
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.8 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.9 Allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim.10 Where the claimant alleges compensable factors of employment, he

3

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

4

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

5

Id.

6

28 ECAB 125 (1976).

7

5 U.S.C. §§ 8101-8193.

8

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

9

Lillian Cutler, supra note 6.

10

J.F., 59 ECAB ____ (Docket No. 07-308, issued January 25, 2008).

3

or she must substantiate such allegations with probative and reliable evidence.11 Personal
perceptions alone are insufficient to establish an employment-related emotional condition.12
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.13 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.14
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.15
With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the Equal Employment Opportunity Commission, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under the Act, the term “harassment” is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or workers.
Mere perceptions and feelings of harassment will not support an award of compensation.16
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition causally related to factors of her federal employment.
Appellant did not attribute her emotional condition to the performance of her modified
duties or to any special work requirement arising from her employment duties under Cutler.17
To the degree that appellant is asserting that her emotional condition was caused by
Office error in issuing an August 28, 2008 decision, matters relating to the handling of a
workers’ compensation claim are administrative in nature and do not arise in the performance of

11

M.D., 59 ECAB ____ (Docket No. 07-908, issued November 19, 2007).

12

Roger Williams, 52 ECAB 468 (2001).

13

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

14

Kim Nguyen, 53 ECAB 127 (2001).

15

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

16

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

17

See James E. Norris, supra note 15.

4

duty.18 Her claim pertains to allegations of administrative error and harassment by Mr. Gilbert,
particularly when he advised her on October 21, 2008 that her work would be reduced to two
hours a day and she would have to take leave or leave without pay for the balance. There is no
evidence to establish that Mr. Gilbert erred by sending appellant home on October 21, 2008 after
two hours of work. As explained in his October 20, 2008 letter, appellant’s hours were reduced
on October 21, 2008 because she submitted medical evidence that she could not perform her
modified duties due to conditions that had not been accepted as employment related.
Furthermore, a review of the record indicates that the Office issued the August 28, 2008 decision
based on miscommunication between the employing establishment and the Office regarding
whether appellant’s modified position was permanent and thus any error in this regard does not
rise to the level of error and abuse contemplated under the Act.19 As to Mr. Gilbert’s
requirement that appellant provide adequate medical documentation, management’s request for
medical documentation to support a continued modified duty assignment is an administrative
function and does not demonstrate error or abuse.20 As there is no evidence here to substantiate
error or abuse, appellant did not establish a compensable factor of employment with respect to
these administrative functions.21
Regarding appellant’s general contention that she was harassed by Mr. Gilbert, mere
perceptions of harassment or discrimination are not compensable under the Act22 and
unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.23 In the case at hand, while appellant
submitted several statements from coworkers, none indicated that she was harassed by
Mr. Gilbert. As appellant submitted no evidence to show a persistent disturbance, torment or
persecution, i.e., mistreatment by Mr. Gilbert or other members of employing establishment
management,24 she did not establish a factual basis for her claim of harassment by probative and
reliable evidence.25
The Board therefore concludes that appellant did not meet her burden of proof to
establish that she sustained an emotional condition in the performance of duty causally related to
factors of her federal employment.26
18

Bettina M. Graf, 47 ECAB 687 (1996).

19

The Board notes that, following issuance of the February 19, 2009 decision, appellant received appropriate
retroactive compensation.
20

Helen Casillas, 46 ECAB 1044 (1995).

21

Tina D. Francis, 56 ECAB 180 (2006).

22

James E. Norris, supra note 15.

23

Id.

24

Beverly R. Jones, supra note 16.

25

See Robert Breeden, 57 ECAB 622 (2006).

26

Leslie Moore, supra note 3.

5

CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6