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

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

Docket No. 14-1993
Issued: May 18, 2015

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 September 15, 2014 appellant, through counsel, filed a timely appeal from a June 10,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of information clerk.
On appeal, appellant’s counsel asserts that the June 10, 2014 decision is contrary to fact
and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 8, 2008 appellant, then a 52-year-old letter carrier, slipped and fell on ice
while delivering mail. The claim was accepted for right elbow strain, right shoulder strain,
traumatic osteoarthritis of the right knee, and degenerative osteoarthritis of the right knee.
Appellant returned to modified duty. On September 3, 2008 she filed an occupational disease
claim alleging that her continued work duties aggravated her right knee condition. OWCP
accepted aggravation of degenerative osteoarthritis of the right knee under this claim, and the
claims were doubled on March 13, 2009.
Appellant stopped work in January 2009 and missed intermittent periods thereafter. On
December 1, 2009 she underwent right knee replacement surgery that was revised on
June 29, 2010. Appellant underwent a third right knee surgical procedure on November 9, 2010.
She has not worked since the December 1, 2009 knee replacement surgery, and she was placed
on the periodic compensation rolls.
In June 2012 appellant relocated to Arizona. In October 2012 OWCP referred her to
Dr. Ronald M. Lampert, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In an October 24, 2012 report, Dr. Lampert noted appellant’s injury and medical history, his
review of medical records, and her report that she had walked with a cane since knee surgery.
Examination demonstrated that without a cane she walked with a right antalgic gait and had
difficulty standing on her heels and toes. The right knee lacked 15 degrees of complete
extension and 25 degrees of flexion. There was no effusion, ligamentous instability, or areas of
point tenderness. Dr. Lampert reported that as a residual of the employment injury, appellant
had difficulty regarding how much she was able to be on her feet. He indicated that she had no
limitations regarding her upper extremities and could be on her feet for 30 minutes, then off for
one hour and could do no repeated bending, stooping, squatting, pushing, pulling, or kneeling
and had no lifting restriction of what she could do from a sitting position. Dr. Lampert
concluded that she could participate in vocational rehabilitation with the above limitations for an
eight-hour day, 40 hours a week and that she was at maximum medical improvement.
In November 2012 OWCP referred appellant to a rehabilitation counselor, for vocational
rehabilitation services.2 Appellant underwent vocational testing on November 26, 2012. This
indicated that she had post high school vocabulary and reading skills and eighth grade spelling
and mathematic skills. Short-term training was recommended. The counselor identified the
positions of medical secretary, receptionist, and information clerk as described in the Department
of Labor, Dictionary of Occupational Titles, as vocational goals. He noted that these were
within appellant’s physical limitations and recommended training at the Maricopa Skills Center.
The recommended training was approved.
By letter dated March 8, 2013, OWCP informed appellant that the job duties of
information clerk/receptionist were within her physical limitations as described by Dr. Lampert
and advised appellant to cooperate fully with the scheduled training. It noted that, based on the
rehabilitation counselor’s evaluation and survey of the local labor market, she had the wage2

On April 30, 2012 OWCP suspended appellant’s compensation because she had not submitted a required Form
EN1032. Appellant submitted the form and periodic rolls compensation was resumed.

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earning capacity of $10.00 to $12.50 an hour, and at the end of the rehabilitation program,
whether she was actually employed or not, OWCP would in all likelihood reduce her
compensation based on this amount. In March 2013, appellant began training in computer,
keyboarding, and business skills.
Dr. Demitri A. Adarmes, Board-certified in internal medical and physical medicine and
rehabilitation, provided a new patient evaluation dated April 24, 2013. He noted appellant’s
employment and medical history and provided physical examination findings, noting that she
ambulated with a right limp and used a cane. On a work capacity evaluation dated May 6, 2013
Dr. Adarmes indicated that appellant had permanent restrictions of a maximum of two hours
sitting at a time, one-half hour walking at a time, no squatting, crawling, or kneeling, and
occasional climbing stairs but no ladders. He provided a 20-pound restriction on pushing,
pulling, and lifting, and indicated that appellant should not operate a motor vehicle while under
the influence of pain medication and should be allowed 10-minute breaks every one to two
hours. In a treatment note dated May 7, 2013 Dr. Adarmes indicated that appellant should
continue her current medications.
On May 6, 2013 appellant informed the rehabilitation counselor that she believed she
possessed the skills needed for an information clerk/receptionist and was ready to seek
employment. She was advised that she would receive 90 days of placement services, with an
extension given if she fully cooperated with the placement effort. Appellant signed an
agreement to the placement plan on May 20, 2013.
On June 5, 2013 the rehabilitation counselor informed OWCP that appellant was
obstructing the rehabilitation effort, noting that she had not followed through with instructions
given to her and had not appeared at a scheduled meeting. In reports that covered the period
May 1 to June 6, 2013, he documented a difficult relationship with appellant, noting that she did
not participate in any of the “job readiness” activities. Placement services ended on
June 6, 2013.
Rehabilitation services were closed on June 17, 2013. The closure memorandum
indicated that the jobs identified were vocationally and medically appropriate and that the entry
level weekly pay rate for the information clerk position ranged from $9.00 to $12.50 per hour
and that position was readily available in the local labor market.3
On July 30, 2013 OWCP proposed to reduce appellant’s compensation based on her
capacity to earn wages as an information clerk. It noted that the evidence established that she
had discontinued cooperation with the placement effort. OWCP indicated, as the medical and
factual evidence established that appellant was no longer totally disabled, she could return to
3

The duties of the information clerk position were described in the Department of Labor’s Dictionary of
Occupational Titles as: answers inquiries from persons entering establishment; provides information regarding
activities conducted at establishment, and location of departments, offices, and employees within organization;
informs customer of location of store merchandise in retail establishment; provides information concerning services,
such as laundry and valet services, in hotel; receives and answers requests for information from company officials
and employees; may call employees or officials to information desk to answer inquiries; and may keep record of
questions asked. It has a sedentary strength level.

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work, and advised that she had the capacity to earn wages as an information clerk at a weekly
rate of $408.00. Appellant was given 30 days to submit evidence in writing.
Appellant did not respond to the preliminary notice. In a treatment note dated August 13,
2013, Dr. Adarmes reported that appellant had little pain when sedentary but that standing or
walking increased the pain. He diagnosed right knee degenerative osteoarthritis, right elbow
strain, and right shoulder strain.
On September 5, 2013 OWCP finalized the reduction of appellant’s compensation. It
noted that the medical evidence established that she was no longer totally disabled and had the
capacity to earn the wages of an information clerk, with a 62 percent loss of wage-earning
capacity. Appellant’s compensation was reduced accordingly.
Appellant, through her attorney, timely requested a hearing. She was not present at the
hearing, held on March 21, 2014. Counsel maintained that appellant could not perform the
information clerk position because she could not drive to work. The record was left open for 30
days for appellant to submit additional medical evidence. Nothing further was submitted, and by
decision dated June 10, 2014 an OWCP hearing representative affirmed the September 5, 2013
decision. The hearing representative noted that there was no medical evidence that explained
how the requirements of the selected position were beyond appellant’s abilities and found that
the evidence was sufficient to show that OWCP met its burden of proof to reduce appellant’s
compensation based on her capacity to earn wages as an information clerk.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.5
Section 8115 of FECA and OWCP regulations provide that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent wage-earning capacity or the employee has no actual earnings, the wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, the employee’s usual employment, age, qualifications for other employment, the
availability of suitable employment, and other factors or circumstances which may affect his or
her wage-earning capacity in the disabled condition.6
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
4

James M. Frasher, 53 ECAB 794 (2002).

5

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, id.

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medical evidence upon which OWCP relies must provide a detailed description of the condition.7
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.8
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age, and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.9 Finally, application of the principles set forth in Albert C. Shadrick,10 as codified in
section 10.403 of OWCP’s regulations,11 will result in the percentage of the employee’s loss of
wage-earning capacity.12
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.13
OWCP procedures provide that noncooperation during the placement stage does not
generally result in a sanction decision under section 8113(b) of FECA. In that instance, the
rehabilitation counselor should be asked to submit a final report and list the jobs for which
placement has been attempted, provide updated labor market surveys, including pay information.
Continuing placement services for the full 90-day period is not required if the claimant has not
cooperated. Upon receipt of the requested information, OWCP should prepare a prereduction
notice determining the injured worker’s wage-earning capacity prospectively in accordance with
section 8115 of FECA, based on one of the selected positions. After considering any response to
the prereduction notice, OWCP should issue a final decision, if appropriate.14
7

William H. Woods, 51 ECAB 619 (2000).

8

John D. Jackson, supra note 5.

9

Supra note 4.

10

5 ECAB 376 (1953).

11

20 C.F.R. § 10.403.

12

Supra note 4.

13

John D. Jackson, supra note 5.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.17.d
(February 2011).

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ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
on September 5, 2013 based on her capacity to earn wages in the constructed position of
information clerk.
The medical evidence as characterized by the second opinion evaluation of Dr. Lampert’s
October 24, 2012 report established that she was no longer disabled from all work. Dr. Adarmes,
the attending physiatrist, also indicated that appellant was not totally disabled. OWCP then
properly referred her for vocational rehabilitation counseling in November 2012.15 In
March 2013, the vocational rehabilitation counselor identified positions that met appellant’s
physical and vocational capabilities. OWCP determined that she had the capacity to earn wages
as an information clerk, based on the medical and vocational evidence of record.
Dr. Lambert indicated that appellant had no limitations regarding her upper extremities
and could be on her feet for 30 minutes, then off for one hour, and could do no repeated bending,
stooping, squatting, pushing, pulling, or kneeling and had no lifting restriction of what she could
do from a sitting position. He concluded that she could participate in vocational rehabilitation
with the above limitations for an 8-hour day, 40 hours a week and that she was at maximum
medical improvement and provided no restrictions regarding appellant’s ability to drive.
Dr. Adarmes provided permanent restrictions of a maximum of two hours sitting at a time, onehalf hour walking at a time, no squatting, crawling, or kneeling, and occasional climbing stairs
but no ladders. He provided a 20-pound restriction on pushing, pulling, and lifting, and indicated
that appellant should not operate a motor vehicle while under the influence of pain medication
and should be allowed 10-minute breaks every one to two hours.
The information clerk position was classified as within the sedentary strength category.16
The physical demands of this position therefore comported with the restrictions provided by both
physicians. The vocational rehabilitation counselor, advised that the position was reasonably
available in the local labor market with an entry-level hourly wage of $9.00 to $12.50 or $360.00
to $500.00 a week.
As to appellant’s argument before OWCP that the position was unsuitable because she
could not drive to work, Dr. Lambert provided no restrictions on appellant’s ability to drive.
While Dr. Adarmes indicated that appellant should not operate a motor vehicle while under the
influence of pain medication, the selected position does not require driving. Moreover, appellant
has not explained why appropriate public transportation would not be available.17
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment, age and employment
15

5 U.S.C. § 8104(a); see Ruth E. Leavy, 55 ECAB 294 (2004).

16

Supra note 3. The Dictionary of Occupational Titles indicates that sedentary work involves sitting most of the
time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are
required only occasionally and all other sedentary criteria are met.
17

See P.M., Docket No. 12-1451 (issued February 19, 2013).

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qualifications, in determining that the position of information clerk represented her wage-earning
capacity.18 The evidence of record establishes that she had the requisite physical ability, skill,
and experience to perform the position and that such a position was reasonably available within
the general labor market of her commuting area. OWCP therefore properly determined that the
position of information clerk reflected appellant’s wage-earning capacity and, using the Shadrick
formula,19 properly reduced her compensation on September 5, 2013.20
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden to justify reduction of appellant’s wage-loss
compensation on the grounds that she had the capacity to earn wages in the constructed position
of information clerk.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2015
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
18

Supra note 4.

19

Supra note 11.

20

Supra note 14.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY CENTER, Oakland, CA, Employer
__________________________________________

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

Docket No. 07-1058
Issued: March 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 March 12, 2007 appellant filed a timely appeal from the February 22, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied an increased schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this
denial.1
ISSUE
The issue is whether appellant is entitled to an increased schedule award as a result of his
accepted employment injury or authorized surgery.

1

On September 12, 2007 the Board issued an order dismissing this appeal at appellant’s request. Subsequently,
appellant explained to the Board that he had made a mistake and wanted the appeal reinstated. In an order dated
December 11, 2008, the Board vacated its prior order and reinstated the appeal.

FACTUAL HISTORY
On January 11, 1980 appellant, then a 32-year-old warehouseman, was driving a truck
and changing gears when the stick shift jumped out of gear and struck him on the palm of his
right hand and thumb. The Office accepted his claim for right carpal tunnel syndrome and
authorized a surgical release on May 27, 1980. On November 26, 1982 it issued a schedule
award for 10 percent permanent impairment of the right upper extremity resulting from the
January 11, 1980 injury. The period of the award ran from July 16, 1982 to February 19, 1983.
After the schedule award expired, compensation for periods of wage loss resumed. Effective
March 15, 1987, the Office terminated appellant’s compensation on the grounds that the medical
evidence established no continuing disability or impairment causally related to the January 11,
1980 injury.2
On April 21, 1998 the Office denied appellant’s claim for an increased schedule award.
On August 10, 2000 it reviewed the merits of that claim and denied modification of its prior
decision. The Board affirmed, finding that appellant had submitted no impairment rating from a
qualified physician showing that he had more than 10 percent impairment of his right upper
extremity as a result of his January 11, 1980 employment injury or authorized surgery.3 The
facts of this case, as set out in the Board’s prior decisions, are hereby incorporated by reference.
On February 11, 2006 appellant filed a claim for an additional schedule award. He
informed the Office that it had been over 18 years “since I was terminated from my original
schedule award” and he did not know where the employer had relocated. Appellant filed another
claim for a schedule award on May 28, 2006 and a third claim on July 1, 2006.
On August 23, 2006 appellant requested the status of “my claim for retroactive pay
because of my wrongful termination of my schedule award compensation in 1987. I am not
requesting a new schedule award.” On October 9, 2006 he advised that he had provided the
Office with new medical opinion evidence to support that “my compensation should have
continued with the 10 percent rating that I was awarded in 1982.”
Appellant directed the Office’s attention to an October 19, 2005 report from Dr. Louis P.
Valli, an orthopedic surgeon. After reviewing the medical records, Dr. Valli reported that the
prognosis of the Office medical consultant seemed appropriate, “and I see no reason to argue
with his conclusion of 10 percent permanent impairment of the right upper extremity. I would
agree with this assessment.”
On October 2, 2006 Dr. Aubrey A. Swartz, an orthopedic surgeon and Office referral
physician, examined appellant and reviewed the medical file. He stated that his examination was
unremarkable, with no evidence of neurologic injury other than two borderline two-point
discrimination findings in the right thumb and right little finger. There were no other findings.

2

Whether the Office properly denied appellant’s January 18, 2008 request for reconsideration of the termination
of his compensation is before the Board on a separate appeal, Docket No. 08-1697, and will not be reviewed here.
3

Docket No. 00-2708 (issued March 6, 2002).

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An Office medical consultant reviewed Dr. Swartz’s findings and determined that
appellant had a five percent impairment of the right upper extremity as a result of having a
satisfactory result following surgery. He did not recommend an increase in appellant’s previous
schedule award:
“It should be noted the claimant has previously received a schedule award of 10
percent impairment for his right upper extremity. Based on the review of medical
records as well as more recent evaluation by Dr. Swartz, it does not appear there
has been any significant change in his condition nor worsening and, therefore, I
would recommend that his [s]chedule [a]ward remain at 10 percent without
increase.”
In a decision dated February 22, 2007, the Office denied appellant’s claim for an
increased schedule award. It found that the evidence failed to establish that he had more than a
10 percent impairment of his right upper extremity, for which he had already received a schedule
award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.5
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.6
ANALYSIS
Appellant filed multiple claims for a schedule award in 2006. On August 23, 2006 he
stated: “I am not requesting a new schedule award.” This would appear to be at odds with his
three new claims for a schedule award. Appellant did refer to a wrongful termination of his
schedule award compensation in 1987 and contended that his compensation should have
continued with the 10 percent rating that he was awarded in 1982. However, schedule awards
made under section 8107 of the Act are limited to the number of weeks of compensation defined
for permanent impairment of a member or function of the body.7 The Board notes that for
complete loss of use of an arm, the maximum number of weeks of compensation is 312 weeks.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

See Linda R. Sherman, 56 ECAB 127 (2004).

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Although a schedule award compensates an employee for a physical impairment that is
considered permanent, it does not provide permanent compensation for the remainder of the
employee’s life. All schedule awards expire after a certain number of weeks. A schedule award
for 10 percent impairment of the right upper extremity, as in this case, expires after 31.2 weeks.8
Appellant’s schedule award ran from July 16, 1982 to February 19, 1983. At the expiration of
his award on February 19, 1983, appellant received all the compensation he was entitled to for
his 10 percent permanent impairment of his right arm.
Any compensation appellant received after February 19, 1983 was for injury-related
wage loss and medical benefits, not for his 10 percent permanent impairment. When the Office
terminated his compensation effective March 15, 1987, it did not, as appellant suggests,
terminate his schedule award compensation. As noted, appellant’s entitlement to schedule award
compensation expired on February 19, 1983, when he received 31.2 weeks of compensation for
the 10 percent impairment of his right upper extremity.
The only way appellant may possibly receive more than 31.2 weeks of compensation for
permanent physical impairment is by showing that he has an increased impairment causally
related to his January 11, 1980 employment injury and authorized surgery. However, appellant
submitted no medical opinion evidence to establish that he has more than 10 percent impairment.
Dr. Valli, his orthopedic surgeon, agreed that appellant had 10 percent impairment of his right
upper extremity. Dr. Swartz, the Office referral orthopedic surgeon, found that appellant had no
more than five percent impairment. An Office medical consultant noted that appellant
previously received a schedule award for 10 percent impairment of his right upper extremity and
there did not appear to be any significant change in his condition. Therefore, the impairment
rating should remain at 10 percent without increase.
The Board finds that appellant has failed to establish that he has more than 10 percent
impairment of his right upper extremity. The Board will therefore affirm the Office’s
February 22, 2007 decision denying appellant’s claims for a schedule award.
CONCLUSION
The Board finds that appellant is not entitled to an increased schedule award as a result of
his accepted employment injury or authorized surgery. Appellant has submitted no medical
evidence showing that he has more than 10 percent permanent impairment of his right upper
extremity.

8

5 U.S.C. § 8107(c)(1) (providing 312 weeks of compensation for 100 percent loss of an upper extremity),
8107(c)(19) (partial losses are compensated proportionately).

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ORDER
IT IS HEREBY ORDERED THAT the February 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.Q., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MI, Employer
__________________________________________
Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1302
Issued: March 12, 2018

Case Submitted on the Record

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

JURISDICTION
On May 28, 2017 appellant, through her representative, filed a timely appeal from a
March 3, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

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 and medical benefits, effective March 3, 2017.
FACTUAL HISTORY
On January 20, 2015 appellant, then a 64-year-old driver, filed a traumatic injury claim
(Form CA-1) alleging that on December 31, 2014, she was struck by a “power ox,” a mail
moving machine, which knocked her down and caused foot, leg, back, and elbow injuries. The
medical evidence reflects that she was treated in an emergency room by Dr. Brett A. Gamma, a
Board-certified emergency room physician, on December 31, 2014, for right foot and right elbow
pain. Appellant reported being knocked down by a mail moving power ox at work. An x-ray of
the right foot revealed no evidence of displaced fracture. Dr. Gamma diagnosed acute foot pain
of the right foot and arm contusion. On January 23, 2015 appellant saw Dr. Eric G. Dawson, an
orthopedic surgeon, who treated her for low back pain, right elbow pain, and headaches.
Dr. Dawson noted the December 31, 2014 incident and advised that she did not lose
consciousness. He diagnosed lumbar discopathy.
OWCP accepted appellant’s claim for sprain of the neck, thoracic spine, lumbar spine,
and unspecified site of the right elbow and forearm. Appellant stopped work on December 31,
2014 and returned on January 12, 2015. She stopped work again on January 23, 2015 and
returned to full-time duty with restrictions on March 30, 2015. OWCP paid appellant wage-loss
compensation for this period.
Appellant came under the treatment of Dr. Eric L. Weisbrot, a family practitioner, from
April 7, 2015 to May 18, 2016, for the neck and back injuries sustained at work on
December 31, 2014. She reported being struck by a “power ox” that spun out of control and
knocked her to the ground. Appellant landed on her right side, hitting her head. Her history was
significant for left foot surgery in 2012 and lumbar fusion in 2001. Dr. Weisbrot noted findings
of paracervical tenderness, restriction range of motion, increased cervicodoral discomfort, healed
thoracic spine scars, paralumbar tenderness, tenderness of the right elbow, and decreased right
hand grip strength. Diagnoses included sprains and strains of the neck, thoracic spine, lumbar
spine, and right elbow and forearm as well as unspecified thoracic, lumbosacral, and cervical
neuritis, radiculitis, and lumbar disc displacement. Dr. Weisbrot opined, within a reasonable
degree of medical certainty, that appellant’s injuries were causally related to the December 31,
2014 employment injury. He released her to return to modified-duty work and recommended
physical therapy. In duty status reports (CA-17 forms) dated April 7, 2015 to May 18, 2016,
Dr. Weisbrot restated his diagnoses and noted that appellant could return to work with
restrictions.
Diagnostic testing of record includes a July 15, 2015 magnetic resonance imaging (MRI)
scan of the lumbar spine showing a prior L5-S1 posterior spinal decompression and fusion, mildto-moderate bilateral foraminal narrowing, and multilevel degenerative changes greatest at L2-3.
A July 28, 2015 MRI scan of the cervical spine revealed mild degenerative disc disease, facet
disease, and neural foraminal narrowing at C3-4.

2

On April 20, 2016 Dr. Weisbrot noted diagnoses of lumbar disc displacement, lumbar
radiculopathy, lumbar sprain/strain, cervical neuritis, cervical sprain/strain, and right elbow
strain and sprain. He related the history of injury and opined that appellant’s work-related
actions directly caused the injuries. Dr. Weisbrot noted that when one was hit unexpectedly it
caused the body to jerk and move in an uncontrolled manner. The sudden movement caused
various muscles in appellant’s back and neck to quickly tighten as a reflex. Dr. Weisbrot noted
that the second impact to the body when it hits the floor would cause sprained and strained
tendons and ligaments. He noted that appellant had low back surgery in 2002 where she
underwent a L5 fusion, but indicated that she was asymptomatic for over 10 years after surgery
until this injury. Dr. Weisbrot noted that, with a sprain or strain injury of the muscles of the
back, the lumbar vertebrae would lose juxtaposition with one another. This would cause extra
strain to annular fibers of the intervertebral discs which would allow the nucleus pulposus to
bulge or protrude causing irritation and inflammation of the nerve root and radiating pain in the
legs. Dr. Weisbrot indicated that the MRI scan revealed degenerative changes and opined that
exacerbation of degenerative arthritis changes was also causally related to the work injury. He
asked that all diagnoses be accepted as causally related to her injury.
In a May 18, 2016 report, Dr. Weisbrot again asked that appellant’s accepted conditions
be expanded to include lumbar disc disorder with radiculopathy, cervical disc displacement,
cervical radiculopathy, and exacerbation of an arthritic condition. He noted that she had
benefited from her treatment and recommended an electromyogram (EMG) and nerve
conduction velocity (NCV) study, and a functional capacity evaluation (FCE).
On May 24, 2016 OWCP referred appellant to Dr. Stuart J. Gordon, a Board-certified
orthopedist, to determine whether the accepted conditions had resolved and whether the
employment injury caused any additional conditions. In a June 8, 2016 report, Dr. Gordon
indicated that he reviewed the records provided and he performed a physical examination. He
noted findings on examination of the cervical spine, lumbar spine, left upper extremity, and right
upper extremity revealed no abnormalities. With respect to the right elbow, he noted that
appellant complained of pain through the lateral epicondyle region. Dr. Gordon noted x-rays of
the cervical spine, with flexion-extension revealed spondylitic change. Radiographs of the
lumbar spine with flexion-extension revealed pedicle screw instrumentation at L5-Sl and multilevel degenerative disease. Radiographs of the right elbow, right hand, and thoracic spine
revealed degenerative disease. Dr. Gordon diagnosed preexisting cervical, thoracic, lumbar
degenerative disease, unrelated; preexisting lumbar fusion, L5-S1, unrelated; preexisting
degenerative disease right elbow and wrist, unrelated; December 31, 2014 chronic cervical,
thoracic, and lumbar strain at maximum medical improvement (MMI); right elbow strain; and
post-traumatic lateral epicondylitis, neurologic symptomology, right upper extremity. He
concluded, with a reasonable degree of medical probability, that the only significant, objective
findings were degenerative changes on radiographs. Dr. Gordon opined that there was no
additional indication for therapy or chiropractic treatment. He recommended EMG and NCV
studies of the right upper and lower extremities and lower extremity to assess the tremors in the
right thumb and her left lower extremity complaints and an FCE. Dr. Gordon opined that
appellant could work full time with restrictions. He further indicated that she was not at MMI.
In a work capacity evaluation (OWCP-5c) dated June 8, 2016, Dr. Gordon noted that appellant
could work full time, eight hours per day, with restrictions. He again noted that she had not
reached MMI.
3

Appellant underwent ultrasound examination on June 9, 2016 which revealed no
sonographic evidence of compromise of the bilateral posterior tibial nerves suggesting Tarsal
tunnel syndrome.
Appellant submitted a July 7, 2016 report from Dr. Weisbrot who reviewed Dr. Gordon’s
report and disagreed with his findings. Dr. Weisbrot indicated that Dr. Gordon did not offer any
medical support or rationale for discontinuing physical therapy. Rather, he clearly indicated that
appellant had residuals as he recommended EMG and NCV testing. Dr. Weisbrot noted that the
injury did not cause the degenerative changes, but indicated that the changes were aggravated by
her being knocked down by the power ox at work. He noted that appellant had not reached
MMI. In a duty status report (Form CA-17), dated July 21, 2016, Dr. Weisbrot noted that she
could continue to work full time with restrictions.
On August 5, 2016 the employing establishment offered appellant a part time, two hours
per day position as a scanner subject to restrictions. Appellant accepted the position and began
working part time as a scanner two hours per day effective August 22, 2016.3
In a report dated October 6, 2016, Dr. Weisbrot indicated that a July 8, 2016 EMG
revealed electrophysiologic evidence of C6 nerve root pathology bilaterally.4 He noted that
appellant was not at MMI. Dr. Weisbrot further noted that the FCE was performed and she did
not meet the strength requirements to return to work as a truck driver. Appellant could continue
to work with restrictions. On October 24, 2016 Dr. Weisbrot diagnosed thoracic or lumbosacral
neuritis or radiculitis, sprain, and strain of the right elbow/forearm, neck, thoracic spine, and
lumbar spine. He opined that appellant had not reached MMI and further treatment was
medically necessary. Dr. Weisbrot continued her on modified duty for two-hour shifts per day.
On October 14, 2016 appellant underwent ultrasound examination of the bilateral wrists
which revealed sonographic evidence of compromise of the right median nerve suggesting
entrapment.
On November 15, 2016 OWCP referred appellant, along with a statement of accepted
facts (SOAF) and a list of questions, to Dr. Robert A. Smith, a Board-certified orthopedist, to
determine the extent of any residuals or disability due to the accepted conditions. In a
December 9, 2016 report, Dr. Smith related her history and reported findings on examination.
Appellant’s gait and station were normal. Examination of the neck and back revealed no finding
of spasm, atrophy, trigger points, or deformity. Active range of motion was satisfactory and
functional without spasm or rigidity. Dr. Smith noted that the elbow revealed no deformity or
instability, active motion was essentially full except for the last five degrees of extension which
appellant hesitated to do because of stated pain complaints. Neurologic examination from an
objective standpoint was normal, although appellant reported painful paresthetic sensations
around the base of her right thumb. Dr. Smith noted that there were no residual factors of
3

The record indicates that appellant’s medical restriction did not change, but instead, the amount of work
available from the employing establishment within her restrictions changed. OWCP paid her compensation for
wage loss resulting from her reduced work hours.
4

The record contains the July 8, 2016 EMG testing.

4

disability or impairment with respect to the accepted conditions as a consequence of the
December 31, 2014 employment injury. He opined that appellant’s symptoms were the result of
chronic degenerative disease unrelated to this accident either directly or by aggravation,
precipitation, or acceleration. Dr. Smith noted that the accepted conditions outlined in the SOAF
were medically related to the subjective loss by direct causation. He indicated that, based on the
benign clinical findings noted on examination, these conditions had resolved without residuals.
Dr. Smith further opined that there was no specific, current evidence that appellant continued to
have right elbow post-traumatic lateral epicondylitis. He noted that there was no need for further
treatment or surgery that would be indicated for any of the resolved conditions resulting from the
work injuries. Dr. Smith advised that appellant had no total or partial disability due to any of the
resolved accepted conditions. He further indicated that she did not require any work restrictions
as a consequence of the work injury. Dr. Smith noted that appellant reached MMI. In an
accompanying December 9, 2016 work capacity evaluation (Form OWCP-5c), he advised that
she could work eight hours daily without restrictions.
Appellant submitted reports from Dr. Weisbrot dated November 21, 2016. Dr. Weisbrot
diagnosed unspecified thoracic or lumbosacral neuritis or radiculitis, and sprain and strain of the
right elbow/forearm, neck, thoracic spine, and lumbar spine. He opined that further medical
treatment was needed. Dr. Weisbrot continued appellant’s modified-duty restrictions.
Appellant was seen by Dr. Mark Coleman, a Board-certified anesthesiologist, on
November 30, 2016, for chronic spine pain. She reported that on December 31, 2014 she was
operating a motorized small truck when it suddenly broke and threw her to the ground knocking
her out. Dr. Coleman diagnosed lumbar post laminectomy syndrome and cervical spondylosis
without myelopathy or radiculopathy. He noted that appellant presented with a two-year history
of back pain radiating into both legs as well as right neck pain radiating into the arm. Appellant
noted being asymptomatic at the time of the accident. Dr. Coleman noted that she was currently
restricted to two hours of light-duty per day. He recommended medial branch block: right C4-5,
right C5-6, and right C6-7.
In December 19, 2016 and January 16, 2017 reports, Dr. Weisbrot noted findings of
paracervical tenderness, restricted cervical spine motion, increased cervicodorsal discomfort on
cervical spine motion, lumbar paraspinal tenderness inferiorly, and restricted lumbar spine
motion. He diagnosed unspecified thoracic or lumbosacral neuritis or radiculitis, sprain and
strain of the right elbow/forearm, neck, thoracic spine, and lumbar spine. Dr. Weisbrot noted
outcome assessment questionnaire findings and continued appellant’s modified duty with
two-hour shifts per day.
On January 30, 2017 OWCP proposed to terminate all compensation benefits finding that
Dr. Smith’s December 9, 2016 report established no continuing residuals of her work-related
conditions.
Appellant submitted January 10 and February 14, 2017 notes from Dr. Coleman who
performed cervical medial branch blocks at left C3-4, C4-5, and C5-6. Dr. Coleman diagnosed
cervical spondylosis and spondylosis without myelopathy or radiculopathy.

5

A February 13, 2017 report from Dr. Weisbrot noted no change in examination findings
and restated his previous diagnoses and recommendations.
In another February 13, 2017 report, Dr. Weisbrot responded to the January 30, 2011
proposed termination. He indicated that he wrote numerous reports requesting appellant’s case
be expanded to include cervical disc displacement, cervical radiculopathy, lumbar disc disorder
with radiculopathy, and exacerbation of a cervical spinal degenerative condition. Dr. Weisbrot
noted the causal relationship based on objective medical evidence from MRI scan reports as well
as the mechanism of injury. He advised that appellant’s diagnoses were confirmed by EMG’s of
the cervical and lumbar spine showing nerve irritation causing symptoms of radiculopathy.
Dr. Weisbrot opined that the trauma of being knocked down and hitting one’s head on the
cement floor would aggravate a prior degenerative condition. He disagreed with Dr. Smith’s
opinion that appellant’s symptoms were the result of chronic degenerative disease unrelated to
the accident. Dr. Weisbrot asserted that Dr. Smith failed to address the results of the EMG or the
MRI scan findings. He noted that Dr. Smith found that appellant reached MMI, but he only saw
her one time and there was no evidence he had her complete an outcome assessment
questionnaire. Dr. Weisbrot opined that, based on the most recent outcome assessment
questionnaire and the EMG findings, she continued to have residuals and that continued therapy
was medically necessary.
By decision dated March 3, 2017, OWCP terminated appellant’s compensation benefits
effective that date. It based its decision on the report of Dr. Smith, the second opinion physician,
who opined that her accepted work-related conditions had resolved and that her degenerative
changes were unrelated to her work injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. After it has determined that, an employee
has disability causally related to his or her federal employment, it may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.5 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability. To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.6
ANALYSIS
OWCP accepted appellant’s claim for sprain of the neck, thoracic spine, lumbar spine,
and unspecified site of the right elbow and forearm. Appellant stopped work on December 31,
2014 and eventually returned to full-time modified duty on March 30, 2015 which she continued
until August 22, 2016, when she began a part-time modified position when the employing
establishment could no longer accommodate her restrictions.
5

Kenneth R. Burrow, 55 ECAB 157 (2003).

6

Furman G. Peake, 41 ECAB 361 (1990).

6

On November 15, 2016 OWCP referred appellant for a second opinion evaluation by
Dr. Smith. In his December 9, 2016 report, Dr. Smith opined that there were no residual factors
of disability or impairment of the accepted conditions as a consequence of the December 31,
2014 employment injury. He opined that appellant’s symptoms were the result of chronic
degenerative disease unrelated to the work injury directly or by aggravation. Dr. Smith indicated
that, based on the benign examination findings, these conditions resolved without residuals. He
opined that there was no specific evidence currently to suggest that appellant continued to suffer
from post-traumatic lateral epicondylitis of the right elbow. Dr. Smith noted that further
treatment was not indicated for any of the resolved conditions. He advised that appellant had no
total or partial disability with respect to any of the resolved conditions accepted for this claim.
Dr. Smith further indicated that she did not require any work restrictions as a consequence of the
work injury and indicated that she could work full time.
The Board finds that Dr. Smith had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. Dr. Smith is a specialist in the appropriate field. His opinion
represents the weight of the evidence and establishes that appellant’s work-related conditions
have resolved. Dr. Smith indicated that she did not have residuals from the conditions of sprain
of the neck, thoracic spine, lumbar spine, and unspecified site of the right elbow and forearm.
His opinion, as set forth in his report of December 9, 2016, is found to be probative evidence and
reliable. The Board finds that Dr. Smith’s opinion constitutes the weight of the medical evidence
and is sufficient to justify OWCP’s termination of wage-loss compensation and medical benefits
for the accepted conditions. There is no contemporaneous medical evidence of equal weight
supporting appellant’s claim for continuing disability and medical residuals.
Appellant submitted reports from Dr. Weisbrot dated November 21, 2016 to February 13,
2017 who diagnosed unspecified thoracic or lumbosacral neuritis or radiculitis, sprain and strain
of the right elbow/forearm, neck, thoracic spine, and lumbar spine. Dr. Weisbrot asserted that
she had impairment, needed further treatment, and required continued modified duty with twohour shifts per day. However, he did not specifically address how any continuing condition or
medical restrictions were causally related to the accepted December 31, 2014 employment
injury. The Board has found that vague and unrationalized medical opinions on causal
relationship have little probative value.7 Additionally, OWCP did not accept appellant’s
condition for thoracic or lumbosacral neuritis or radiculitis.8
On February 13, 2017 Dr. Weisbrot requested that appellant’s case be expanded to
include cervical disc displacement, cervical radiculopathy, lumbar disc disorder with
radiculopathy, and exacerbation of a cervical spinal degenerative condition. He advised that her
diagnoses were confirmed by diagnostic testing. Dr. Weisbrot disagreed with Dr. Smith’s
opinion that appellant’s symptoms were the result of chronic degenerative disease unrelated to
the accident. He noted that Dr. Smith only saw her one time. Dr. Weisbrot noted that the recent
7
Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports
not containing rationale on causal relationship are entitled to little probative value).
8

See T.M., Docket No. 08-0975 (issued February 6, 2009) (where a claimant claims that a condition not accepted
or approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the
condition is causally related to the employment injury through the submission of rationalized medical evidence).

7

outcome assessment questionnaire and the EMG findings revealed that appellant had continued
residuals. Although he supported that she had continuing symptoms, he did not specifically
explain how her current condition and continuing disability were causally related to the accepted
employment injuries of December 31, 2014.9 Dr. Weisbrot did not provide sufficient medical
rationale to explain why appellant continued to have residuals causally related to her
employment injury. The need for rationale is particularly important where appellant was
diagnosed with preexisting degenerative disc disease of the neck, cervical and lumbar spine, and
had prior lumbar fusion.10 Additionally, as noted above, OWCP did not accept her condition for
thoracic or lumbosacral neuritis or radiculitis and there is no evidence in the record to support
such a conclusion.
Other notes from Dr. Coleman dated November 30, 2016 to February 14, 2017,
diagnosed lumbar post laminectomy syndrome and spondylosis without myelopathy or
radiculopathy, cervical region. Appellant reported that her symptoms were the result of a
workplace accident which occurred on December 31, 2014 when she was operating a motorized
small truck when it suddenly stopped and threw her to the ground, knocking her out.11 However,
D r . Coleman did not specifically address how any continuing condition or medical
restrictions were causally related to the accepted December 31, 2014 employment injury. The
Board has found that vague and unrationalized medical opinions on causal relationship have
little probative value.12
On appeal, appellant, through her representative, asserts that OWCP improperly
terminated her benefits as she continued to have residuals of her accepted conditions. As found,
the December 9, 2016 report from Dr. Smith represents the weight of the medical evidence and
establishes that her work-related conditions have resolved. There was no contemporaneous
medical evidence of equal or greater weight supporting that appellant had continuing disability
and medical residuals of the accepted conditions. She alleges that OWCP did not properly
expand her claim to include lumbar neuritis/radiculitis, lumbar disc displacement and cervical
neuritis, and post-traumatic lateral epicondylitis. However, the Board notes that since OWCP
did not issue a final decision within 180 days of the appeal on whether these additional
conditions were causally related to the December 31, 2014 work injury, the Board does not have
jurisdiction over the matter.13 Appellant also asserts that the SOAF provided to Dr. Smith was
inaccurate as Dr. Gordon’s diagnosed post-traumatic lateral epicondylitis should have been
included as accepted. The Board notes that the SOAF properly listed the conditions that OWCP
9
See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
10

See S.C., Docket No. 17-0490 (issued June 27, 2017) (where the Board held that the need for rationale is
particularly important where the evidence indicated that appellant had a preexisting condition).
11

This report appears to be based on an inaccurate history as initial medical reports of record do not indicate that
appellant experienced a loss of consciousness on December 31, 2014. See Leonard J. O’Keefe, 14 ECAB 42, 48
(1962) (where the Board held that medical opinions based upon an incomplete history have little probative value).
12

Jimmie H. Duckett, supra note 7.

13
See 20 C.F.R. § 501.2(c). This decision does not preclude appellant from seeking a final adjudication from
OWCP on this separate matter.

8

accepted as employment related. OWCP has not accepted the claim for post-traumatic lateral
epicondylitis. Thus, this condition was not included in the SOAF. Dr. Smith properly based his
opinion on accepted conditions as accurately related in the SOAF. Appellant asserts that the
claims examiner was retaliatory and did not properly handle her claim. The record does not
support this allegation. There is no evidence that OWCP improperly developed the claim. As
explained, OWCP met its burden of proof in terminating appellant’s wage-loss compensation
and medical benefits.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 3, 2017.
ORDER
IT IS HEREBY ORDERED THAT the March 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZEN & IMMIGRATION SERVICES,
Laguna Niguel, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0277
Issued: March 16, 2018

Case Submitted on the Record

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

JURISDICTION
On November 18, 2016 appellant, through counsel, filed a timely appeal from an
August 19, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On February 27, 2015 appellant, then a 59-year-old intelligence research specialist, filed
an occupational disease claim (Form CA-2), alleging that, since 2008, he was subjected to a pattern
of harassment by managers which caused him to develop a cardiac condition. He asserted that
these actions against him that were unlawful, created a hostile work environment, and were
retaliatory. Appellant first became aware of his condition and its relation to his federal
employment on July 9, 2014. He stopped work on July 14, 2014.
In an October 23, 2014 declaration, appellant alleged that, in August 2008, he had
requested leave without pay (LWOP) for military service to attend inactive duty for training during
a workweek, but he was improperly charged for 24 hours of annual leave. In Spring 2009, he was
required to attend a six-week training course at a time when his mother had serious health
conditions. Appellant was her primary caregiver and he requested an excuse from the March
training, which was granted. He registered for the next training in May and requested a second
excuse, but this was improperly denied by supervisors T.B. and D.L. Appellant alleged that his
managers had not informed him of his Family and Medical Leave Act (FMLA) rights. He also
alleged that, on January 12, 2010 Deputy Director B.G. improperly issued a memorandum
charging him with two counts of misconduct. The first count related to his e-mail to headquarters
and the second charge was for failure to sign a proposed notice of suspension from work on
April 26, 2013 and for filing an Equal Employment Opportunity (EEO) complaint.
Appellant noted being on FMLA-protected leave for most of July through August 2009 to
care for his terminally-ill mother. He was approached by T.B. and was told that management had
noticed that he was using a considerable amount of leave, and that he may want to reconsider his
priorities. On November 30, 2009 T.B. presented appellant with his 2010 performance work plan
(PWP), and his performance plan and appraisal (PPA) which he refused to sign. On December 2,
2009, appellant was called to meet with T.B. and D.L. when T.B. read aloud a memorandum that
instructed him to sign the 2010 PWP or risk disciplinary action that included possible removal
from employment. He believed D.L. and T.B. were directing him to commit an unlawful act by
signing the PWP.
Appellant asserted that, on December 4, 2012, D.L. learned that appellant did not complete
a task that was assigned to him in November 2011 and exclaimed in the presence of at least two
other supervisors, “You just didn’t like what you were told to do!” On December13, 2012
appellant’s first supervisor, E.F., informed him that he no longer needed to communicate with the
FBI on a case due to a personnel change. Appellant replied in a classified e-mail to the FBI
informing them that someone else would coordinate with them in the future, and notified E.F. by
unclassified e-mail. He alleged that E.F. called him to the office, and exclaimed in an angry voice
“You violated a directive!” Appellant indicated that he spoke with T.B. at his office later the same
day to clarify what he was demanding of him and while he was standing at the doorway of his
office, T.B. shouted at him, “Out, out, OUT!!!” He alleged that on January 31, 2013 E.F. instructed

2

him to perform some very basic tasks pertaining to a case, but appellant believed the tasks were
more appropriate for lower level employees. In the early summer of 2013, appellant alleged that
there were several officers who were loud and disruptive in the work section and he asked P.K., a
supervisor, if he and another employee could be relocated to another area, but his request was
denied. In October 2013, a section reorganization was initiated which moved appellant closer to
the disruptive officers. Appellant protested, but the plan was implemented.
Appellant alleged that on May 21, 2014 he was preparing an Intelligence Information
Report (IIR) as instructed by P.K. before she departed on leave. T.B. told him not to do this and
advised that he should be working on an Intelligence Assessment (IA) instead. When P.K. returned
on May 27, 2014, she instructed him to complete the IA within 10 days. On May 30, 2014
appellant explained that he could not guarantee that he would be able to complete the IA in 10
days, especially since the IA was supported with an open national security investigation by Special
Agent M.P. He noted that his doctor ordered him to be on medical leave for stress from June 8
to 16, 2014. On June 19, 2014 P.K. e-mailed appellant to complete the IA by June 20, 2014, which
appellant indicated was impossible. On January 20, 2010 appellant filed an EEO complaint based
on discrimination of sex, age, and retaliation for EEO conduct.
On July 8, 2014 appellant was called to a meeting with D.L, E.F., and P.K. and was notified
that he was making an unnamed person feel threatened and unsafe. They asked him to modify his
behavior. On July 9, 2014 appellant requested an official investigation with the Office of Security
and Integrity of the July 8, 2014 allegations made against him. He informed D.L., E.F., and P.K.
of this request by e-mail. On July 11, 2014 appellant was escorted to D.L.’s office and was met
by personnel security specialist and another investigator. He asserted that the investigator
threatened that if he heard any more unfavorable information about him that he would be back and
proceed to investigate. Appellant was not questioned or asked to give a statement on the conduct
issues he raised, but only asked to change his own conduct. On July14, 2014 in a meeting with
D.L. and E.F. he was told that he would be under E.F.’s direct supervision and his workstation
would be moved to a different room. Appellant felt this would be a problem as E.F. had falsely
accused him of misconduct in April 2013. He believed that the forced reassignment and being
moved to another location were retaliatory acts which increased his stress. Appellant advised that
Dr. Margaret L. Rasouli, a Board-certified cardiologist, took him off work for six months due to
his heart condition and he began taking LWOP under the FMLA on August 6, 2014. On
September12, 2014 he received a proposed letter of reprimand (LOR) from the Deputy Director,
dated September 8, 2014, which required a response within 15 days of receipt.
Appellant also submitted medical evidence. Dr. Popak Firooznam, a Board-certified
family practitioner, saw appellant on June 8, 2014 for anxiety. He took appellant off work from
June 9 to 13, 2014. On August 28, 2014 Dr. James Garvey, Board-certified in emergency
medicine, reported appellant’s maltreatment from management. August 7, 2014 to February 6,
2015 reports from Dr. Rasouli noted appellant’s treatment for a cardiac condition. She indicated
that appellant had significant stress at work that contributed to a cardiac abnormality on July 9,
2014 and that he would be off work. Dr. Seth Bricklin, a psychologist, saw appellant on
February 12, 2015. He diagnosed adjustment disorder with anxiety as a direct result of his job.
Dr. Bricklin opined that appellant was unable to perform his work duties at the employing
establishment.

3

On May 11, 2015 OWCP asked appellant to submit additional evidence that included a
detailed description of the employment incidents that contributed to his claimed illness.
In a June 8, 2015 statement, appellant responded to OWCP’s questionnaire and
summarized his EEO complaint noting that his reassignment with significantly different
responsibilities was an adverse action. He asserted that his work assignments were inappropriate
for his job series and the work assigned was less complex than appropriate for his grade. Appellant
further noted that his work was evaluated inappropriately using a generic annual performance work
plan and he was prevented from engaging in the full range of activities expected of his job series.
He indicated that the Equal Employment Opportunity Commission (EEOC) issued a summary
decision on November 1, 2013 without a hearing and determined that he failed to provide
compelling evidence indicating discrimination as the basis of management’s actions.
Appellant also submitted documents pertaining to EEO and grievance matters. This
included an April 26, 2013 notice of proposed suspension for two days for failure to follow
supervisory instructions and disrespectful conduct. On May 21, 2013 appellant disputed the
proposal because his supervisors assigned him tasks without due dates and he made progress on
them within reasonable periods of time. He advised that his outburst at E.F. was provoked and
was the product of an extended period in which he felt harassed. On August 8, 2013 D.C., a deputy
director of the employing establishment, sustained the charges against appellant, but reduced the
proposed suspension to an LOR. On September 20, 2013 appellant grieved the LOR. On
October 8, 2013 K.B., the center director for the employing establishment, denied appellant’s
grievance regarding his LOR. She noted that if his supervisor’s instructions were inappropriate he
should have discussed it with the supervisor and, if not satisfactory, reported it to the chain of
command. Regarding appellant’s allegations that his disrespectful conduct was provoked, the
director asserted that, regardless, appellant’s statement was disrespectful. She noted that the
reprimand was the lowest form of discipline and was not permanent. On April 18, 2014 K.B.
reconsidered the matter and withdrew the LOR after having several meetings with appellant. She
advised that she did not condone any behavior that involved disrespectful conduct or a failure to
follow instructions.
Appellant submitted a January 12, 2010 EEO complaint, which alleged that the employing
establishment discriminated against him based on age and sex. He submitted the November 1,
2013 EEOC decision which granted the employing establishment’s motion for summary judgment
as appellant had not established by a preponderance of the evidence that the employing
establishment discriminated against him on the basis of his age, sex, and/or EEO activity.3
By decision dated August 25, 2015, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that his claimed condition was sustained in the
performance of duty.

3
On September 9, 2013 the U.S. Office of Special Counsel advised appellant that it made a preliminary
determination to close its inquiry into appellant’s allegations of retaliatory conduct by the employing establishment.

4

On August 31, 2015 appellant, through counsel, requested reconsideration. He contended
that appellant implicated activities that involved performing regular or specially assigned work
duties. On November 20, 2015 OWCP denied modification of its August 25, 2015 decision.
On January 19, 2016 counsel requested reconsideration. He reiterated prior allegations and
submitted additional evidence. Evidence submitted included several e-mails. On May 27, 2014
P.K. wrote, “Please plan to complete the IA template conversion within two weeks, which would
be by June 10, 2014. I want you to email me and Elliott halfway, 5 days in on June 3, 2014 to let
us know your progress (as I will be on leave but will be checking my emails).... I want you to make
it a goal to complete one LIR a week on the Fl schools, beginning June 10, 2014, ... if need be as
J.M. can takeover during this time and assist with the FBI in working these cases for the time
needed to complete the IA conversion....” Appellant responded on May 30, 2014, stating “There
is no way I can guarantee to you, or Elliott, that I will be able to complete an Intelligence
Assessment (IA) in any period of time, especially less than two weeks.... I wish I could give you
assurances on precise timelines for completing finished intelligence products, but that is neither
possible, nor practical.”
Appellant submitted a notice from the employing establishment dated June 2, 2014, which
indicated that he was due for reinvestigation for his continued employment with the employing
establishment, which was required of all employees every five years. The notice indicated that
appellant would need to complete the security paperwork and coordinate with his supervisor
regarding the use of duty hours to comply with this requirement.
Appellant provided e-mails from his supervisor pertaining to the reinvestigation. On
June 3, 2014 E.F. noted, “I am following up on [T.B.’s] email and want to reiterate that you are
authorized a reasonable amount of time necessary to complete your SF-56 through e-OIP. Please
note completing the e-QIP is not an excuse for missing mission deadlines previously received from
PJ. These deadlines will not be moved again.” Appellant responded on June 4, 2014 “I’ll try my
best, as always, but I make no guarantees about completing intelligence reports by artificial
deadlines. The e-Qip will take several hours, probably a couple of days given my extensive
USAFR history....” On June 19, 2014 P.K. indicated, “l am ordering that you complete the IA
report by COB 6/20/2014, as the original deadline was for June 10, 2014.... Due to your
background investigation and your request to take one day off to work on your background
investigation, the deadline was then pushed back by one additional day, and then later the
following week you were out sick the entire week of June 9 -- 13, 2014, and as such I gave you an
additional 3 days setting the deadline to June 18, 2014. Shortly after returning to work on June 16,
2014, you found new research material consisting of 601 pages and as such I gave you an additional
day and set the deadline to complete this IA report on June 19, 2014. Your OPM investigator
called you and interviewed you for six hours on 6/19/2014, and as such you missed the 6/19/2014
deadline, so I am now requesting that you complete this report by COB 6/20/2014.” Appellant
responded on June 20, 2014 stating, “I cannot do the impossible. If you feel that this report should
be completed by COB today, then you or Elliott need to show me how to accomplish a finished
intelligence report by a date certain. There is simply no factual basis for making this a
requirement.... I will not compromise the quality of intelligence in a finished intelligence product
simply to meet an arbitrary deadline that has no operational, or otherwise rational, requirement.”

5

Appellant submitted a June 4, 2010 affidavit from coworker S.K., who indicated that she
heard from a lot of the intelligence research specialists that they were unhappy with their standards.
With regard to the use of time-based quotas, she indicated that some other regions were using the
same system. S.K. indicated that D.L. used the time-based quota system, but D.L. did not have
any experience working with intelligence research work and set unrealistic standards for
completing intelligence research.
By decision dated August 19, 2016, OWCP denied modification of its November 20, 2015
decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying 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.4
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,5 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.6
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.7 Allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.8
Where the claimant alleges compensable factors of employment, he or she must
substantiate such allegations with probative and reliable evidence.9 Personal perceptions alone are

4

George H. Clark, 56 ECAB 162 (2004).

5

28 ECAB 125 (1976).

6

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

7

Lillian Cutler, supra note 5.

8

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

9

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

6

insufficient to establish an employment-related emotional condition.10 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force, or his or her frustration from not being permitted to work in a particular environment, or
to hold a particular position.11
ANALYSIS
Appellant alleged that he sustained an emotional condition due to a number of employment
interactions and conditions. OWCP denied his emotional condition claim because he failed to
establish any compensable employment factors. The Board must initially review whether these
alleged incidents and conditions of employment are covered employment factors under the terms
of FECA.
Appellant has attributed his emotional condition to performing his regular or specially
assigned duties of his position. He alleged that his workload was excessive and he was required
to perform work within unrealistic timeframes. Appellant alleged that on May 27, 2014 his
supervisor instructed him to complete the IA report within 10 days. On May 30, 2014 he explained
that he could not guarantee that he would complete the IA in 10 days, especially since the IA was
supported with an open national security investigation by a special agent. Appellant asserted that
he was ordered by his doctor to be on medical leave for a week due to stress at work from June 8
to 16, 2014. On June 19, 2014P.K. e-mailed appellant to complete the same IA by June 20, 2014
and he responded that he could not do the impossible. However, appellant provided insufficient
corroborating evidence to establish that he was overworked or sufficiently explain why his reaction
was to his assigned duties instead of a disagreement with his supervisor over the assignment of
duties.12 There is no evidence to support appellant’s general allegation of overwork. Appellant
submitted an affidavit from a coworker, S.K., who noted other regions used the time-based quota
system. S.K. indicated that D.L. used the time-based quota system and set unrealistic standards
for completing intelligence research. This general statement from a coworker is insufficient to
establish that appellant was overworked and required to perform work within unrealistic
timeframes. There is no evidence that the employing establishment directed him to work within
unrealistic timeframes. Rather, the record reveals that P.K. accommodated appellant by granting
him several extensions to complete the IA report. In an e-mail dated June 19, 2014, P.K. advised
that the original deadline was for June 10, 2014 and, due to a background investigation, appellant’s
request to take one day off to work on the background investigation, his use of sick leave from
June 9 to 13, 2014, and an OPM investigator telephone interview for six hours June 19, 2014, the
deadline was moved to June 20, 2014. Thus, to the extent that appellant alleged overwork,13 or

10

Roger Williams, 52 ECAB 468 (2001).

11

See Lillian Cutler, supra note 5.

12

See infra, notes 17, 18, and accompanying text, for discussion on administrative matters and work assignments.

13

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).

7

unrealistic deadlines,14 this is not established by the evidence of record. Furthermore, he did not
otherwise sufficiently attribute his emotional condition to performing a specific regular or
specially assigned duty in his job. Therefore, appellant has not established a compensable factor
under Cutler.15
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,16 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
FECA would attach if the factual circumstances surrounding the administrative or personnel action
established error or abuse by the employing establishment superiors in dealing with the claimant.
Absent evidence of such error or abuse, the resulting emotional condition must be considered selfgenerated and not employment generated. In determining whether the employing establishment
erred or acted abusively, the Board has examined whether the employing establishment acted
reasonably.17
Appellant alleged that, in August 2008, he requested LWOP for military service for
inactive duty training during a workweek, but he was improperly charged with 24 hours of annual
leave. Similarly, in spring 2009, he requested to be excused from a six-week training course
because his mother had serious health conditions and he was her primary caregiver. Appellant was
excused from the March training, but his second request to be excused was denied. He further
alleged that his employing establishment failed to inform him of his rights under FMLA. The
Board notes that the handling of leave requests and attendance matters are generally related to the
employment, they are administrative functions of the employing establishment and not duties of
the employee.18 The Board finds that the employing establishment acted reasonably in this
administrative matter. The factual evidence does not substantiate that the employing establishment
unreasonably denied appellant leave. Appellant did not provide any corroborating evidence to
substantiate that the employing establishment acted unreasonably in this matter.
Appellant asserted that he was improperly disciplined by the employing establishment on
January 12, 2010 for misconduct related to his e-mail communication to headquarters, for a
proposed suspension from work in 2013, which was later reduced to a proposed LOR on
September 8, 2014, which was later withdrawn. Allegations of improper discipline relate to
14

The Board has held that emotional reactions to situations in which an employee is trying to meet his or her
position requirements are compensable. The Board, citing the principles of Cutler, listed employment factors which
would be covered under FECA, including an unusually heavy workload and imposition of unreasonable deadlines;
see Georgia F. Kennedy, 35 ECAB 1151, 1155 (1984); Joseph A. Antal, 34 ECAB 608, 612 (1983). .
15

Supra note 5.

16

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

17

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

18

See Judy Kahn, 53 ECAB 321 (2002).

8

administrative or personnel matters unrelated to his regular or specially assigned duties and does
not fall within the coverage of FECA.19 Although the handling of disciplinary actions and
evaluations are generally related to the employment, they are administrative functions of the
employing establishment, and not duties of the employee.20 The record, as noted above, fails to
establish that appellant was improperly disciplined. To the extent that appellant is complaining
about the manner in which a supervisor performs his duties as a supervisor or the manner in which
a supervisor exercises his supervisory discretion fall, as a rule, is outside the scope of coverage
provided by FECA. As noted, a supervisor or manager in general must be allowed to perform his
or her duties and mere disagreement or dislike of a supervisory or management’s action will not
be actionable, absent evidence of error or abuse.21 The Board also notes that the fact that the
proposed suspension and the LOR, which were withdrawn does not establish error by the
employing establishment.22 Here, appellant did not submit any evidence establishing that the
employing establishment erred in these matters. The Board finds that appellant has not offered
sufficient evidence to establish error or abuse and the evidence does not establish that the
employing establishment acted unreasonably in these matters.
Appellant alleged that on November 30, 2009 T.B. presented his 2010 PWP and PPA and
instructed him to sign the 2010 PWP or risk disciplinary action. He felt that D.L. and T.B. were
directing him to commit an unlawful act. However, it is not factually substantiated that the
employing establishment forced appellant to sign a document on November 30, 2009. No further
evidence was presented to corroborate these allegations. Furthermore, the handling of evaluations
is an administrative function of the employing establishment and not a duty of the employee.23
Appellant has not shown that the employing establishment erred in the matter and established a
compensable employment factor in this matter.
Appellant alleged that assignment of work by his supervisors and unrealistic deadlines
caused stress. On January 31, 2013 E.F. instructed him to perform very basic tasks that appellant
believed were more appropriate for lower level employees. Appellant noted that on May 21, 2014
he was working on an Intelligence Information Report, T.B. told him that he should be working
on an IA. On May 27, 2014 P.K. instructed him to complete the IA within 10 days and then
extended the deadline until June 20, 2014. The Board notes that the assignment of work is an
administrative function17 and the manner in which a supervisor exercises his or her discretion falls
outside the ambit of FECA. Absent evidence of error or abuse, appellant’s mere disagreement or
dislike of a managerial action is not compensable. The Board has also held that an employee’s
dissatisfaction with performing duties for which he or she feels overqualified or holding a position
19

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).
20

Id.

21

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

22

C.T., Docket No. 08-2160 (issued May 7, 2009) (the mere fact that personnel actions are later modified or
rescinded does not, in and of itself, establish error or abuse).
23

C.S., 58 ECAB 137 (2006).

9

which he or she feels to be unchallenging or uninteresting is not compensable under FECA.24 The
Board finds that appellant has not offered sufficient evidence to establish error or abuse regarding
his work assignments. The evidence does not establish that the employing establishment acted
unreasonably. The record reveals that P.K. accommodated appellant granting him several
extensions to complete the IA report, noting that the deadline was extended from June 10
to 20, 2014. The employing establishment has either denied appellant’s allegations or explained
the reasons for its actions in these administrative matters. Appellant has presented no
corroborating evidence to support that the employing establishment acted unreasonably.
Appellant also implicated the location of his worksite as a cause of his stress. In 2013, he
alleged loud and disruptive employees in his work section, but his request to be relocated to another
was denied, and he was later relocated closer to the disruptive employees. On July 14, 2014
appellant was called into a meeting with D.L. and E.F. and was informed that he would be under
E.F.’s direct supervision and his workstation would be moved. He believed that working under
E.F. would be a problem because he initiated prior false accusations of misconduct against him in
April 2013. Appellant further indicated that forced reassignment of a supervisor and movement
to another work location away from his colleagues was retaliatory and added to his work-related
stress. To the extent that appellant has alleged that the change in the location of his workstation
constituted punishment or was inconvenient this, would be analogous to emotional frustration in
not being allowed to work in a particular environment. It is well established that when disability
results from an employee’s frustration over not being permitted to work in a particular
environment, to hold a particular position, or to secure a promotion, such disability does not arise
in the performance of duty.25 Appellant has not submitted sufficient evidence to establish that the
administrative change in the location of his work location constituted administrative error or abuse
by the employing establishment’s management.26 Thus, appellant has not established a
compensable employment factor under FECA with respect to his work location.
Appellant alleged that he was harassed, screamed at, and humiliated by his supervisors and
threatened with an investigation. To the extent that incidents alleged as constituting harassment
or a hostile environment by a supervisor are established as occurring and arising from appellant’s
performance of his regular duties, these could constitute employment factors.27 However, for
harassment to give rise to a compensable disability under FECA, there must be evidence that
harassment did in fact occur. Mere perceptions of harassment are not compensable under FECA.28
Appellant alleged that on December 4, 2012 D.L. learned that appellant did not complete a task
24

See Purvis Nettles, 44 ECAB 623, 628 (1993).

25
See C.O., Docket No. 09-0217 (issued October 21, 2009); see also Charles D. Edwards, 55 ECAB 258 (2004)
(denials by an employing establishment of a request for a different job, promotion, or transfer are not compensable
factors of employment under FECA, as they do not involve a claimant’s ability to perform his or her regular or
specially assigned work duties, but rather constitute a desire to work in a different position).
26

T.H., Docket No. 16-1164 (issued February 24, 2017).

27

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

28

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).

10

that was assigned to him in November 2011 and exclaimed in the presence of at least two other
supervisors, “You just didn’t like what you were told to do!.” He alleged that on December13,
2012 E.F. called him to the office, and angrily exclaimed, “You violated a directive!” Similarly,
appellant alleged that later the same day and while he was standing at the doorway of his office,
T.B. shouted at him, “Out, out, OUT!!!” On July 8, 2014 he was called to a meeting with D.L,
E.F., and P.K. and was notified that he was making an unnamed person feel threatened and unsafe,
and they asked him to modify his behavior. Appellant alleged that on July11, 2014 he was escorted
to D.L.’s office and was met by personnel security specialist and another investigator who
threatened that if he heard any more unfavorable information about him that he would be back and
proceed to investigate. The evidence of record fails to support appellant’s claim for harassment as
a cause for his emotional condition. General allegations of harassment are insufficient29 and in
this case appellant has not submitted sufficient evidence to establish disparate treatment by his
supervisor.30 Although he alleged that his supervisor harassed and engaged in actions, which he
believed constituted harassment, appellant provided no corroborating evidence to establish his
allegations.31 The factual evidence fails to support appellant’s claim that he was harassed or
discriminated against in these matters.
The record also indicates that appellant filed grievances and EEO complaints alleging
discrimination and unfair treatment. However, grievances and EEO complaints, by themselves,
do not establish that workplace harassment or unfair treatment occurred.32 In this case, the granted
summary judgement finding that appellant had not established by a preponderance of the evidence
that the employing establishment discriminated against him on the basis of his age, sex, and/or
EEO activity in the present case. As noted, a grievance regarding a proposed suspension, later
reduced to a LOR, resulted in eventual withdrawal of the LOR. However, the documents
associated with this matter do not make a finding that the employing establishment erred.33 None
of the evidence from these matters establishes improper action by the employing establishment.
Thus, the evidence regarding the EEO grievance matters does not establish compensable
harassment by the employing establishment.
Appellant alleged that his supervisors threatened, yelled, and verbally abused him. The
Board has recognized the compensability of verbal abuse and threats in certain circumstances. This
does not imply, however, that every statement uttered in the workplace will give rise to coverage
under FECA.34 The Board finds that the evidence does not establish any specific incidents of
compensable verbal abuse or threats. Appellant provided no corroborating evidence to establish
29

See Paul Trotman-Hall, 45 ECAB 229 (1993).

30
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).
31

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

32

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

33

See supra note 22.

34

See Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L. White, 42 ECAB 666, 669-70 (1991).

11

any specific incidents. As noted, he alleged that T.B. told him that he might want to reconsider
his priorities in view of his leave use. Appellant also, as noted, asserted that D.L., E.F., and T.B.
either shouted at him or spoke to him disparagingly. The Board finds that the facts of the case do
not sufficiently support any specific incidents of verbal abuse. Appellant provided no
corroborating evidence to establish any specific incidents.35 Thus, these allegations do not rise to
the level of a compensable employment factor.36
Consequently, appellant has not established his claim for an emotional condition as he has
not attributed his claimed condition to any compensable employment factors.37
On appeal appellant, through counsel, reiterates his allegations, asserting that he has
established his emotional condition claim. As explained, the Board finds that appellant has not
established his claim for an emotional condition as he has not established any compensable
employment factors.
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 failed to meet his burden of proof to establish an emotional
condition in the performance of duty.

35

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
36

See Judy L. Kahn, supra note 18.

37
As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Kryzcki, 43 ECAB 496 (1992).

12

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2018
Washington, DC

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

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

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

13