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

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

Docket No. 12-565
Issued: January 16, 2013

Case Submitted on the Record

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

JURISDICTION
On January 9, 2012 appellant, through her attorney, filed a timely appeal from the
October 26 and December 14, 2011 merit decisions of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant had disability for 96 hours from January 27 to
February 11, 2011 or any disability for work commencing June 21, 2011 causally related to her
accepted employment-related injury.
1
2

5 U.S.C. § 8101 et seq.

On November 10, 2011 OWCP denied appellant’s schedule award claim. On November 22, 2011 appellant,
through counsel, submitted a request for a telephone hearing under section 8124. Because OWCP did not issue a
final schedule award decision before the present appeal was filed, it is not an issue before the Board.

FACTUAL HISTORY
OWCP accepted that on December 10, 2010 appellant, then a 61-year-old customer
service representative, sustained bilateral knee, head, and right elbow contusions and a left knee
sprain when she stepped out of an elevator and tripped on an uneven floor at work. On
January 27, 2011 it accepted arthropathy of the left ankle. Appellant stopped work on
December 10, 2010 and returned to limited duty on February 22, 2011.
Appellant filed claims for disability compensation (Form CA-7) for the period January 27
to February 12, 2011. Leave analysis sheets for the claimed period revealed that she used eight
hours of leave without pay (LWOP) on June 27, 28 and 31, 2010 and February 1 to 4 and 7 to 11,
2011 due to medical treatment.
The record contains a September 13, 2010 report from Dr. Neal L. Presant, Boardcertified in family and occupational medicine, dated prior to the December 10, 2010 injury
accepted in this case. Dr. Presant noted that appellant had been unable to work since early June
because of an injury sustained in a fall. He noted that she requested advanced sick leave of 96
hours commencing July 13, 2010. Dr. Presant stated that appellant sustained injuries to her
elbow and foot and that her physicians agreed that she was unable to work. He opined that she
might be able to return to work by early October. Dr. Presant explained that it was unlikely that
appellant would be able to return to work before December because she had a medical condition
that would be considered “serious” under the criteria for advanced sick leave.
In a handwritten attending physician’s report, a physician with an illegible signature
listed appellant’s complaint of increased back pain radiating down the left lower extremity and
knee since a slip and fall at work on December 10, 2010. The form noted the diagnoses of acute
chronic low back pain at L5 and acute left knee pain. It advised that appellant was disabled
beginning December 10, 2010.
In a December 15, 2010 x-ray report, Dr. Bennett Greenspan, a Board-certified diagnostic
radiologist, observed moderate to severe tricompartmental osteoarthritis of both knees and a
loose body was seen in the left knee. He found no fracture or other osseous abnormalities. An
x-ray of the lumbar spine revealed moderate to severe degenerative disc disease at L5-S1 and
normal vertebral body heights.
In a December 15, 2010 report, Dr. Alexander Sheng, Board-certified in physical
medicine and rehabilitation, noted appellant’s complaint of back pain radiating down her left
lower extremity and knee since a fall at work on December 10, 2010. Examination of the lumbar
spine revealed tenderness diffusely in her lumbar paraspinals and spinous processes. Flexion
was to approximately 60 degrees and extension to neutral. Examination of the left knee revealed
slight effusion and tenderness all the way down to appellant’s tibial crest on the left. Dr. Sheng
observed crepitation and mild varus laxity on her knee. Lachman’s and McMurray’s tests were
negative bilaterally. Dr. Sheng reviewed appellant’s medical records and noted that an x-ray
showed moderate to severe tricompartmental osteoarthritis in the knees with a loose body in the
left knee. He diagnosed acute chronic low back pain with left lower extremity radicular features
consistent with an L5 process and acute left traumatic knee pain in the setting of osteoarthritis
and loose body status post fall concerning for osteochondral injury.

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In a December 22, 2010 magnetic resonance imaging (MRI) scan report of the lumbar
spine, Dr. Robert McKinstry, a Board-certified diagnostic radiologist, observed normal anatomic
alignment and vertebral bodies without compression fractures. Degenerative endplate changes
were present at L5 and S1. Dr. McKinstry diagnosed moderate multilevel degenerative disc
disease, facet arthropathy, and ligamentum flavum thickening, most severe at L5-S1.
In a December 23, 2010 report, Dr. Timothy J. Oldani, a podiatrist, obtained a history of
appellant’s December 10, 2010 employment injury and related her inability to work since that
time due to pain with weight-bearing activity. Upon examination, she complained of pain with
palpation across the anterior aspect of the left ankle and across the Lisfranc joint of the left foot.
A mild amount of localized edema was also present across the dorsal aspect of the left foot.
X-rays revealed negative results. Dr. Oldani diagnosed left foot subtalar joint sprain and
recommended an MRI scan of the left foot and ankle. He provided handwritten medical notes
that were largely ineligible.
In a January 7, 2011 report, Dr. Bernard C. Randolph, Jr., Board-certified in physical
medicine and rehabilitation, reviewed appellant’s medical history since the December 10, 2010
employment injury. Upon examination, he observed tenderness at the right elbow and grossly
normal motion. Appellant’s cervical spine was normally aligned and range of motion was full
and pain free. Examination of the wrists and hands revealed functional ranges of motion and no
swelling or deformity. Tinel’s, Finkelstein’s and Phalen’s tests of the wrists were negative.
Dr. Randolph noted bilateral valgus deformities of both knees and pain with valgus stress and
palpation along the medial and anterior aspect of the knee. Examination of the lumbar and
thoracic spine revealed normal alignment and functional range of motion. Dr. Randolph stated
that x-rays revealed basal joint arthritis of the wrists and tricompartmental osteoarthritis of the
knees with no acute abnormalities. Based on appellant’s history, she was involved in a
December 10, 2010 work-related incident where she sustained contusions to the knees, right
elbow, and both hands, and sprained her left knee. Dr. Randolph noted underlying degenerative
disease evident bilaterally and recommended an MRI scan examination and physical therapy. He
concluded that regarding work, appellant would be able to do most of her normal activities as
long as she was allowed to rest or stretch her left knee approximately 10 minutes every hour.
In a January 18, 2011 report, Dr. Anthony M. Lombardo, a podiatrist, examined appellant
for a left foot injury. He placed her in a below the knee cast and instructed her to return in three
weeks for cast removal. On January 19, 2011 he noted that appellant was totally disabled as of
December 14, 2010. In a January 21, 2011 return to work slip, Dr. Lombardo advised that
appellant was unable to work until February 8, 2011. He restricted her to no lifting, standing,
and walking and stated that she was only able to work sitting down.
By letters dated February 8 and 23, 2011, OWCP advised appellant that the medical
evidence was insufficient to establish disability for the claimed period as a result of her accepted
injuries. It requested additional evidence to support her claim.
On February 8, 2011 Dr. Lombardo examined appellant’s left ankle and found no pain
with palpation. Range of motion in dorsiflexion, plantarflexion, inversion and eversion of the
subtalar joint was within normal limits. Dr. Lombardo authorized appellant to return to work on
February 21, 2011.

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In a February 10, 2011 MRI scan of the left knee, Dr. Catherine Beal, a Board-certified
diagnostic radiologist, found advanced osteoarthritis of the anterior compartment, articular
cortical irregularity, spurring, and articulate erosions and subchondral bone marrow signal
change. She also noted a subchondral cyst formation cortical irregularity within the lateral tibial
plateau and medial compartment spurring. Dr. Beal diagnosed advanced tricompartmental
osteoarthritis predominating anteriorly and laterally and effusion with probable suprapatellar
loose body.
On February 11, 2011 Dr. Randolph stated that the left knee MRI scan revealed
degenerative disease but no acute ligament injuries. He diagnosed left knee contusion and sprain
and bilateral knee contusions. Dr. Randolph restricted appellant to avoid kneeling, stooping, and
squatting and intermittent standing. Following December 10, 2010, appellant was diagnosed
with a fracture to her left foot and was unable to participate in physical therapy. Dr. Randolph
listed her complaint of left knee discomfort, mainly in the anterior and somewhat medial area,
and mild discomfort in the anterior aspect of the right knee. He noted that she had been off work
from four to six weeks. Upon examination, Dr. Randolph observed a functional range of motion,
mild pain on the extreme of flexion and crepitus on range of motion. Appellant complained of
mild discomfort with valgus stress. Lachman’s and McMurray’s tests were negative. The MRI
scan of the left knee revealed moderate to severe tricompartmental degenerative disease, a small
effusion and a thinning of the meniscal cartilage without acute injury. Dr. Randolph diagnosed
persistent mechanical knee pain primarily related to arthritic disease and contusions at the time
of her fall.
In a February 18, 2011 return to work slip, Dr. Lombardo stated that appellant was able
to return to work on February 22, 2011 under physical restrictions. The record reflects that
appellant returned to work at full-time modified duty under the restrictions recommended by
Dr. Randolph and Dr. Lombardo.
Appellant submitted physical therapy reports dated February 16 to March 2, 2011. She
was treated for left ankle and bilateral knee pain.
In a March 7, 2011 MRI scan of the left ankle, Dr. David Wu, a Board-certified
diagnostic radiologist, noted appellant’s history of left ankle pain and swelling and possible
fracture of the tarsal bone. He observed mild osteoarthritic changes with cartilage thinning in the
subtalar joint and calcaneal-cuboid osteoarthritic disease. Appellant’s lateral collateral and
deltoid ligaments were intact. Dr. Wu diagnosed calcaneal-cuboid osteoarthritic disease with a
four millimeters lateral marginal osteophyte of the distal calcaneus and subtalar and talonavicular
osteoarthritic disease.
In an April 6, 2011 decision, OWCP denied appellant’s claim of 96 hours of disability for
the period January 27 to February 11, 2011. It found the medical evidence did not provide a
rationalized opinion addressing her disability for the claimed hours as a result of her
December 10, 2010 injury.
On April 22, 2011 appellant, through counsel, submitted a request for a telephone
hearing, which was held on August 9, 2011. Counsel noted that Dr. Randolph treated appellant
only for her elbow and knee conditions and, therefore, his opinion that appellant was capable of

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returning to work referred only to these conditions. He noted that Dr. Lombardo treated
appellant for her ankle and foot condition and did not authorize her to return to work until
February 21, 2011.
The hearing representative noted appellant’s claim for disability
compensation listed January 16, 2011 but the attached leave analysis report demonstrated that
she had requested leave without pay beginning January 27, 2011.3
On May 18, 2011 the employing establishment confirmed that appellant had returned to
modified duty on February 22, 2011. Appellant subsequently stopped work to undergo surgery
for a nonwork-related left shoulder condition on April 8, 2011. She claimed leave following
surgery from May 11 to 26, 2011. The record reflects that appellant returned to work following
surgery on or about May 24, 2011.
In a decision dated June 21, 2011, OWCP denied appellant wage-loss compensation
commencing June 21, 2011. It found that the medical evidence established that she was capable
of work within the restrictions set by Dr. Lombardo and Dr. Randolph.
On June 30, 2011 appellant, through her attorney, submitted a request for a telephone
hearing, which was held on October 6, 2011. She related that she returned to modified duty
within her work restrictions after her December 2010 injury but stopped again due to an
unrelated medical issue. Appellant returned again to work in June 2011. The hearing
representative left the record open for 30 days for submission of additional medical evidence.
In an October 26, 2011 decision, OWCP’s hearing representative affirmed the April 6,
2011 decision denying her claim for 96 hours of disability compensation from January 27 to
February 11, 2011.
In a decision dated December 14, 2011, an OWCP hearing representative affirmed the
June 21, 2011 decision denying wage-loss compensation commencing June 21, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee has the burden of establishing that he or she was disabled for work as a
result of the accepted injury. Whether a particular injury causes an employee to become disabled
for work, and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.4 Such medical evidence must
include findings on examination and the physician’s opinion, supported by medical rationale,
showing how the injury caused the employee disability for his or her particular work.5

3

Appellant also submitted physical therapy records.

4

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

5

Dean E. Pierce, 40 ECAB 1249 (1989).

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Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.6 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify her disability and entitlement to compensation.7
The Board has held that according to section 8103, payment of expenses incidental to the
securing of medical services encompasses payment for loss of wages incurred while obtaining
medical services.8 An employee is entitled to disability compensation for the loss of wages
incident to treatment for an employment injury.9
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for head, bilateral knee, and right
elbow contusions, left knee sprain and unspecified arthropathy of the left ankle sustained on
December 10, 2010. Appellant filed claims for 96 hours of disability during the period
January 27 to February 11, 2011. She also claimed disability commencing June 21, 2011
following surgery for a nonemployment-related left shoulder condition.
The Board finds that the evidence establishes that appellant was treated for her workrelated injuries on February 8, 10 and 11, 2011 and is entitled to four hours of compensation for
each date.10 The record supports that, on February 8, 2011, Dr. Lombardo examined appellant’s
left ankle and found that her range of motion dorsiflexion, plantarflexion, inversion and eversion
of the subtalar joint were within normal limits. Appellant underwent a February 10, 2011 MRI
scan of the left knee and Dr. Beal observed advanced osteoarthritis of the anterior compartment,
articular cortical irregularity, spurring, articulate erosions and subchondral bone marrow signal
change. She diagnosed advanced tricompartmental osteoarthritis predominating anteriorly and
laterally and effusion with probable suprapatellar loose body. The next day, Dr. Randolph stated
that in a February 11, 2011 report that he examined appellant for complaints of left knee
discomfort, mainly in the anterior and somewhat medial area and mild discomfort in the anterior
aspect of the right knee. He observed functional range of motion, mild pain on the extreme of
flexion, and crepitus on range of motion and diagnosed persistent mechanical knee pain. The
Board finds that the medical evidence establishes that appellant received treatment for her
employment-related injuries on February 8, 10 and 11, 2011, and is entitled to a total of 12 hours
of compensation (four hours each) on these dates.
6

Laurie S. Swanson, 53 ECAB 517, 520 (2002); see also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

7

Jefferson, supra note 4.

8

5 U.S.C. § 8103.

9

Daniel Hollars, 51 ECAB 355 (2000); Antonio Mestres, 48 ECAB 139 (1996); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16(a) (December 1995).
10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998) (provides that, in general, no more than four hours of compensation or continuation of pay should
be allowed for routine medical appointments.

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The remaining medical evidence of record is insufficient to establish that appellant was
disabled for the other 84 hours claimed as a result of her accepted December 10, 2010
employment injuries.
Appellant submitted various reports by Dr. Lombardo to support her claim for disability
compensation. In a January 19, 2011 report, Dr. Lombardo examined appellant for a left foot
injury after a December 10, 2010 fall at work. He noted placing her in an air cast and reported
that appellant was totally disabled beginning December 14, 2010. In a January 21, 2011 return
to work slip, Dr. Lombardo indicated generally that she would be unable to work until
February 8, 2011. In a February 8, 2011, he authorized appellant to return to work on
February 21, 2011. Although Dr. Lombardo opined that appellant was disabled from work until
February 21, 2011, he did not provide any explanation or medical rationale addressing his stated
conclusion. Although he noted that appellant’s foot had been placed in an air cast, he did not
explain why she would be disabled from performing the modified duties of her federal
employment under the restrictions he set forth.
In a January 7, 2011 report, Dr. Randolph provided an accurate history of the
December 10, 2010 injury and noted appellant’s complaints of bilateral knee pain and some pain
along the dorsal aspects of her wrists, hands and right elbow. Upon examination, he observed
tenderness at the right elbow and functional ranges of motion with no swelling or deformity.
Examination of appellant’s knees revealed bilateral valgus deformities with valgus stress and
palpation along the medial and anterior aspect of the knee. Dr. Randolph diagnosed left knee
contusion and sprain and degenerative disease. He stated that appellant should be able to return
to her normal work activities as long as she was allowed to rest or stretch her left knee
approximately 10 minutes every hour. In a February 11, 2011 medical form, Dr. Randolph
further restricted her to avoid kneeling, stooping and squatting. The Board finds that his reports
fail to establish that appellant was disabled during the claimed period as he authorized appellant
to return to work on January 7, 2011. Dr. Randolph’s report does not support that she was
unable to work from January 27 to February 11, 2011 as a result of her December 10, 2010
injuries.
The medical evidence is insufficient to establish that appellant was disabled during the
claimed period as a result of her accepted December 10, 2010 employment injuries. The reports
of Drs. Presant, Greenspan, Sheng, McKinstry, Oldani, Beal and Wu do not provide any opinion
regarding appellant’s inability to perform modified work during the claimed period as a result of
her accepted injuries.
The record establishes that appellant returned to modified duty full time as of
February 21, 2011. She continued working until she stopped on April 8, 2011 to undergo
surgery for a nonaccepted left shoulder condition. OWCP denied appellant’s claim for disability
compensation benefits as of June 21, 2010. The evidence of record does not establish that
appellant sustained disability due to her accepted conditions on or after April 8, 2011 or
commencing June 21, 2011.
Appellant did not submit any medical evidence contemporaneous to her April 8, 2011
surgery or thereafter to support any period of disability for work due to residuals of her accepted
conditions. There is no medical opinion from either Dr. Randolph or Dr. Lombardo, the
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attending physicians, addressing whether appellant’s December 10, 2010 injury necessitated the
shoulder surgery or contributed to any disability for work as of June 21, 2011. The record
reflects that appellant returned to work on May 24, 2011 and she testified at the October 6, 2011
hearing that she was performing work duties within her specified restrictions. There is no
medical evidence addressing appellant’s disability for work commencing June 21, 2011 in
relation to the conditions accepted as arising out of the December 20, 2010 injury. For these
reasons, the Board finds that she did not meet her burden of proof to establish disability
commencing June 21, 2011.
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 established entitlement to compensation for 12 hours of
medical treatment; but has not otherwise established that she was disabled from January 27 to
February 11, 2011 or commencing June 21, 2011 as a result of her December 10, 2010
employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 14 and October 26, 2011 decisions
of the Office of Workers’ Compensation Programs are affirmed, as modified.
Issued: January 16, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, MAIN POST ANNEX,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 15-1164
Issued: February 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 28, 2015 appellant, through counsel, filed a timely appeal from a December 12,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 14 percent permanent impairment of the
right upper extremity.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY -- xxxxxx185
On September 30, 2008 appellant, then a 25-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on September 7, 2008 she sprained her right shoulder in
the performance of duty. OWCP accepted the claim, assigned OWCP File No. xxxxxx185, for
muscle strain and impingement syndrome of the right shoulder.
On August 7, 2009 appellant underwent a subacromial decompression and bursectomy of
the right shoulder. She returned to work with restrictions on September 16, 2009 and to her
regular employment on December 4, 2009.
On February 5, 2010 a nurse practitioner provided range of motion (ROM) measurements
for appellant’s right shoulder. An OWCP medical adviser, in a report dated June 16, 2010,
applied Table 15-34 on page 475 of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides) to the
measurements and found, after applying grade modifiers, that appellant had eight percent
permanent impairment of the right upper extremity.
By decision dated November 18, 2010, OWCP granted a schedule award for eight
percent permanent impairment of the right upper extremity. The period of the award ran for
24.96 weeks from February 5 to July 29, 2010.
On April 8, 2013 appellant requested an increased schedule award (Form CA-7).
In an impairment evaluation dated March 1, 2013, Dr. Martin Fritzhand, a Board-certified
urologist, who specializes in occupational medicine, discussed appellant’s history of her
September 2008 shoulder injury. He found right shoulder clavicular tenderness, reduced muscle
strength, and right upper extremity atrophy. Dr. Fritzhand advised that appellant had reached
maximum medical improvement in August 2010. Using the diagnosis-based impairment (DBI)
method, he diagnosed a partial thickness tear of the rotator cuff using Table 15-5 on page 402 of
the A.M.A., Guides, which yielded a default value of one percent. Dr. Fritzhand found,
however, that the impairment could also be assessed using the ROM method under Table 15-34
on page 475. He measured ROM for the right shoulder of 110 degrees forward flexion, 20
degrees extension, 100 degrees abduction, 30 degrees adduction, 90 degrees external rotation,
and 20 degrees internal rotation. Dr. Fritzhand further found 4/5 muscle strength of the shoulder
and reduced right biceps circumference. He noted that appellant had a QuickDASH (Disabilities
of the Arm, Shoulder, and Hand) score of 61.4. Dr. Fritzhand determined that she had 3 percent
impairment in flexion, 2 percent impairment in extension, 3 percent impairment in abduction,
1 percent impairment in adduction, 4 percent impairment in internal rotation, and no impairment
in external rotation, which he added to find 13 percent right upper extremity impairment.3
An OWCP medical adviser reviewed Dr. Fritzhand’s impairment evaluation on
May 23, 2013. He concurred with his finding that appellant had 13 percent permanent right
upper extremity impairment using the ROM method. The medical adviser adjusted the

3

A.M.A., Guides 475, Table 15-34.

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impairment rating upward by a net modifier of 1 based on appellant’s QuickDASH score of 61.4,
to find 14 percent permanent impairment of the right upper extremity.
In a decision dated October 1, 2013, OWCP granted appellant a schedule award for an
additional six percent impairment of the right upper extremity. The period of the award ran for
18.72 weeks from March 1 to July 10, 2013.
FACTUAL HISTORY -- xxxxxx785
On September 8, 2011 appellant, then a 28-year-old mail handler, filed a traumatic injury
claim alleging that on August 28, 2011 she sprained her right wrist moving a box. OWCP
accepted her claim, assigned OWCP File No. xxxxxx785, for right wrist sprain, right hand
sprain, a contusion of the right middle finger, and a closed fracture of the distal end of the radius
of the right hand.
On January 9, 2012 appellant filed a claim for a schedule award (Form CA-7). By letter
dated January 11, 2012, OWCP requested that Dr. Kevin Julian, an attending Board-certified
orthopedic surgeon, provide an impairment evaluation in accordance with the sixth edition of the
A.M.A., Guides. On March 7, 2012 Dr. Julian advised that appellant had two percent permanent
impairment of the upper extremity due to a wrist fracture under Table 15-3 on page 396 of the
A.M.A., Guides.
By decision dated September 20, 2012, OWCP denied appellant’s claim for a schedule
award. It determined that she had not provided an impairment evaluation in support of her claim.
On September 24, 2012 appellant, through counsel, requested a telephone hearing before
an OWCP hearing representative.
In an impairment evaluation dated March 1, 2013, Dr. Fritzhand found tenderness of the
right radial wrist on palpation. He measured ROM of the right wrist as 30 degrees flexion, 40
degrees extension, 20 degrees ulnar deviation, and 0 degrees radial deviation. Dr. Fritzhand
further found 4/5 muscle strength of the palmar flexors of the right wrist with full sensation and
no atrophy. He advised that appellant had reached maximum medical improvement in
August 2012 and indicated that she had a QuickDASH score of 61.4. Using the DBI method,
Dr. Fritzhand identified the diagnosis as wrist sprain under Table 15-3 on page 396, and noted
that the A.M.A., Guides provided that the impairment could alternatively be assessed using the
ROM method. He determined that, under the ROM method and according to Table 15-32 on
page 473 of the A.M.A., Guides, appellant had 3 percent impairment due to loss of flexion, 3
percent impairment due to loss of extension, 4 percent impairment due to reduced radial
deviation, and 2 percent impairment for loss of ulnar deviation, for a total right upper extremity
permanent impairment of 12 percent.
In a decision dated May 22, 2013, an OWCP hearing representative set aside the
September 20, 2012 decision. She remanded the case for OWCP to refer Dr. Fritzhand’s
March 1, 2013 impairment evaluation to a medical adviser for review.
On July 9, 2013 an OWCP medical adviser determined that appellant had three percent
permanent impairment of the right upper extremity. He related that his rating differed from
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Dr. Fritzhand’s because he used the more preferred DBI method. The medical adviser identified
the diagnosis as a class 1 right wrist fracture, which yielded a default impairment of three
percent. He applied grade modifiers of one for physical examination findings based on
appellant’s tenderness to palpation, zero for clinical studies as they were used to identify the
diagnosis, and zero for functional history as the QuickDASH score of 70 exceeded the findings
on physical examination and was therefore unreliable. Applying the net adjustment formula
yielded three percent right upper extremity permanent impairment.
By decision dated July 11, 2013, OWCP denied appellant’s claim for an increased
schedule award. It noted that she had already received a schedule award for eight percent
permanent impairment of the right upper extremity under OWCP File No. xxxxxx185, and thus
concluded that the evidence did not show that she was entitled to a greater award.
On July 15, 2013 appellant, through counsel, requested a telephone hearing.
Following a preliminary review of the record, in a decision dated November 21, 2013, an
OWCP hearing representative vacated the July 11, 2013 decision. He noted that Dr. Fritzhand
had provided two March 1, 2013 impairment evaluations, one relevant to the injury in the current
OWCP file number and one relevant to OWCP File No. xxxxxx185. The hearing representative
instructed OWCP, on remand, to combine the two file numbers, prepare an updated statement of
accepted facts, and request that a medical adviser review both reports from Dr. Fritzhand and
provide a total impairment rating of the upper extremities.
On December 20, 2013 an OWCP medical adviser found that appellant had a total right
upper extremity impairment of six percent, using the DBI method. For the right shoulder, he
identified the diagnosis as class 1 tendinitis with residual loss, which yielded a default value of 3
using Table 15-5 on page 402, the Shoulder Regional Grid. The medical adviser determined that
the ROM measurements for the right shoulder obtained by Dr. Fritzhand were not valid as prior
ROM measurements for the right shoulder were better than those found by Dr. Fritzhand. He
therefore applied a grade modifier of one for physical examination. The medical adviser
determined that grade modifiers for functional history and clinical studies were not applicable.
He found no net adjustment from the default value of three percent.
For the right wrist, the medical adviser again found that Dr. Fritzhand’s ROM findings
were invalid as the measurements were considerably worse than other earlier ROM
measurements of the right wrist of record and as he had measured only one motion per joint. He
identified the diagnosis as a right wrist fracture. The medical adviser applied a grade modifier of
one for physical examination. He determined that any grade modifier for functional history
would be unreliable as the QuickDASH score of 70 percent equaled a grade modifier of 3, which
exceeded the physical examination grade modifier of 1 by 2 or more places and thus was
unreliable under the A.M.A., Guides at page 406. The medical adviser found that a grade
modifier for clinical studies was not applicable as it was used to place the diagnosis into the
class. He found no adjustment from the three percent default value. The medical adviser
combined the three percent right wrist impairment with the three percent right shoulder
impairment to find a total six percent right upper extremity permanent impairment.

4

By decision dated March 21, 2014, OWCP denied appellant’s claim for an increased
schedule award.
On March 26, 2014 appellant, through counsel, requested a telephone hearing. At the
hearing, held on October 1, 2014, counsel contended that the A.M.A., Guides allowed the most
favorable impairment rating and that consequently she should get an award for the impairment
under the ROM method.
In a decision dated December 12, 2014, an OWCP hearing representative affirmed the
March 21, 2014 decision. She determined that the opinion of the medical adviser constituted the
weight of the evidence and established that appellant was not entitled to an increased schedule
award.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.5 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.8
4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
6

5 U.S.C.

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

Isidoro Rivera, 12 ECAB 348 (1961).

5

ANALYSIS
The issue on appeal is whether appellant has more than 14 percent permanent impairment
of the right upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.9
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.10 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.11
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the December 12, 2014
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

9

T.H., Docket No. 14-0943 (issued November 25, 2016).

10

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

11

Supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 24, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
W.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charleston, SC, Employer
_________________________________________

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

Docket No. 12-514
Issued: July 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 10, 2012 appellant filed a timely appeal from the November 7, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
further review of her claim. As more than 180 days elapsed from the last merit decision of
June 28, 2011 and the filing of this appeal, pursuant to Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 12, 2010 appellant, then a 45-year-old transportation security screener
filed an occupational disease claim alleging that she sustained a groin/hip injury “enthesopathy
1

5 U.S.C. § 8101 et seq.

of the hip groin, nerve” at work. She indicated that her condition was caused or aggravated by
her employment on July 6, 2009.2 The employing establishment noted that appellant was
receiving retirement benefits.
In a November 22, 2010 statement, appellant indicated that she was transferred to the
evening shift in July 2009 because of an injury. As a result, she had a longer walk due to the
unavailability of parking. Appellant indicated that she had pain in her groin and hip as a result
and that she was no longer working and receiving retirement benefits. She also included a
November 24, 2009 report from a physician’s assistant, who indicated that appellant’s condition
was aggravated by walking.
Appellant submitted several reports from her treating physician, Dr. Bright McConnell,
III, a Board-certified orthopedic surgeon. In a September 3, 2009 report, Dr. McConnell advised
that she had an onset of pain from a work injury and slip and fall on July 12, 2007. He indicated
that aggravating factors included walking and house work.
In an October 29, 2009 treatment note, Dr. J. Edward Nolan, a Board-certified
anesthesiologist, diagnosed pelvic hip pain, disuse atrophy of the muscles, lumbar radiculopathy
and muscle spasms. He advised that appellant was treated for right groin, hip and lower
extremity pain and was advised that there is “nothing structurally in the hip which is causing this
pain. In a January 25, 2010 report, Dr. Nolan advised Dr. McConnell that appellant was initially
treated on October 26, 2009 for chronic hip, groin and leg pain associated with a July 2007 work
injury. He noted that appellant’s claim was denied and requested Dr. McConnell’s assistance
with regards to explaining why she may still have issues with walking. In a January 26, 2010
disability certificate, Dr. Nolan placed appellant off work on January 16 and 22, 2010 due to
increased hip pain. He indicated that she was unable to walk for prolonged distances. In his
April 12, 2010 report, Dr. Nolan advised that appellant would be seen every one to two months
for treatment of chronic pain associated with a work injury in July 2007.
By decision dated January 18, 2011, OWCP denied appellant’s claim on the factual
component of the third basic element, fact of injury. It found that the evidence did not support
that the injury or events occurred. Furthermore, appellant did not submit any medical evidence
containing a medical diagnosis in connection with the injury or events.
On February 2, 2011 appellant requested a telephonic hearing, which was held on
April 26, 2011. She explained that her July 6, 2009 injury was made worse when she was placed
on the evening shift noting because it required more walking than the morning shift.
By decision dated June 28, 2011, OWCP’s hearing representative affirmed the
January 18, 2011 decision, finding that appellant had not submitted sufficient medical evidence
to establish that additional walking beginning July 2009 caused or aggravated an injury.

2

The record reflects that appellant has several claims including a traumatic injury claim for a July 12, 2007 injury
under File No. xxxxxx635 and a May 22, 2005 injury under File No. xxxxxx482. She was separated for cause on
June 2010. These other claims are not presently before the Board.

2

On August 30, 2011 appellant requested reconsideration and submitted additional
evidence. She alleged that she sustained a traumatic injury on July 12, 2007 and was unable to
walk without pain since the incident. Appellant alleged that the injury caused her to sustain an
occupational disease. She explained that she saw her physician in July 2009, after she
experienced an extremely painful night. Appellant suggested that her condition was due to the
walking at work. She indicated that she had to get a note from her physician to avoid being
suspended. Appellant advised that her physician prescribed a “100 yard walking limitation”
which was “secondary to pain.” She indicated that her traumatic injury claim should be
reviewed and noted that she had worsened after all the walking she had to do when she was
transferred to the p.m. shift.
In a July 1, 2011 report, Dr. Nolan advised that appellant sustained a work-related right
groin injury on July 12, 2007. He noted that aggravating factors included too much activity or
over exertion. Dr. Nolan related that appellant indicated that she was not working, as she was
fired due to increased pain from her work injury. He diagnosed radiculopathy to include
moderate lumbar radiculitis pain with range of motion in the right L1 and L5 nerve distribution
to the groin. Dr. Nolan also diagnosed a piriformis/sciatic nerve moderate pain in the right
piriformis muscle over the sciatic nerve to palpation with lower extremity moderate pain in the
right anterior hip to palpation and range of motion.
By decision dated November 7, 2011, OWCP denied appellant’s request for
reconsideration without reviewing the merits of the case.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that: “(1) shows that OWCP erroneously applied or interpreted a specific
point of law; or (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id.

3

ANALYSIS
Appellant disagreed with the denial of her claim for an occupational disease and
requested reconsideration on August 30, 2011. The underlying issue on reconsideration was
whether she submitted sufficient medical evidence to establish that she sustained a work-related
occupational disease beginning July 2009. However, appellant did not provide any relevant or
pertinent new evidence to the issue of whether she sustained an occupational disease in the
performance of duty.
In her August 30, 2011 request for reconsideration, appellant essentially reiterated her
previous arguments. As noted above, this involved allegations that she sustained a groin injury
due to increased walking when she was transferred to another shift. The submission of evidence
which repeats or duplicates evidence that is already in the case record does not constitute a basis
for reopening a case for merit review.6
Appellant also submitted a July 1, 2011 report from Dr. Nolan, who advised that she
sustained a right groin injury on July 12, 2007. Dr. Nolan noted that aggravating factors
included too much activity or over exertion and that she was no longer working, as she had been
fired due to increased pain from her work injury. However, this report, while new, is not
relevant or pertinent as he did not address whether appellant’s job duties beginning in July 2009
caused or aggravated a diagnosed medical condition. The Board also finds that this evidence
was similar to Dr. Nolan’s January 25, 2010 report that was previously of record and considered
by OWCP.7
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion, noted above, for reopening a claim for merit review. Furthermore, she also has
not shown that OWCP erroneously applied or interpreted a specific point of law or advanced a
relevant new argument not previously submitted. Therefore, OWCP properly denied appellant’s
request for reconsideration.
On appeal, appellant contends that the claims examiner indicated that her condition was
an occupational disease. However, the Board notes that the issue in the present appeal is whether
appellant submitted the requisite evidence to obtain a merit review. As found above, the
evidence submitted on reconsideration was insufficient.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).

6

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald, 50
ECAB 185 (1998).
7

See id.

4

ORDER
IT IS HEREBY ORDERED THAT the November 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

5


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

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

Docket No. 18-1772
Issued: April 9, 2019

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 September 13, 2018 appellant filed a timely appeal from a March 22, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from OWCP’s last merit decision, dated November 7, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 22, 2018, the date of OWCP’s last decision was
September 18, 2018. Since using September 19, 2018, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is September 13, 2018, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s March 20, 2018 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On June 28, 2014 appellant, then a 59-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on June 4, 2014, she sustained sciatica after lifting magazines
from the bottom of a mail hamper while in the performance of duty. She stopped work on
June 12, 2014. On the reverse side of the claim form, the employing establishment controverted
the claim noting that the date of injury specified on the Form CA-1 conflicted with that provided
on the medical reports.
By decision dated August 13, 2014, OWCP denied appellant’s traumatic injury claim. It
found that she had not factually established the occurrence of the alleged June 4, 2014 employment
incident, noting that the medical evidence indicated differing dates of injury.
Appellant, on August 21, 2014, requested an oral hearing before an OWCP hearing
representative.
Following a December 3, 2014 hearing, by decision dated February 6, 2015, OWCP’s
hearing representative affirmed the August 13, 2014 decision as modified to find that appellant
had established the occurrence of the June 4, 2014 employment incident. He found, however, that
appellant failed to establish a medical diagnosis in connection with the accepted June 4, 2014
employment incident.
Appellant, on February 2, 2016, authorized John Casey to represent her before OWCP. On
February 3, 2016 appellant, through her then-representative, requested reconsideration.
By decision dated May 9, 2016, OWCP modified its February 6, 2015 decision to find that
appellant established both the factual and medical components of fact of injury. However, it
denied her traumatic injury claim, finding that she failed to establish causal relationship.
On August 11, 2016 appellant, through her then-representative, again requested
reconsideration.
Appellant, on August 17, 2016, provided written notice to OWCP that John Casey was no
longer her representative. She specified Alan Apfelbaum as her then-representative. On
August 22, 2016 appellant withdrew all other representative designations and advised that
Mr. Apfelbaum was her sole representative in matters regarding her OWCP claim.
By decision November 7, 2016, OWCP denied modification of its May 9, 2016 decision.
It found that appellant had not submitted reasoned medical evidence establishing causal
relationship between a diagnosed condition and the accepted June 4, 2014 employment incident.

2

Mr. Casey, on November 28, 2017, indicated that he had submitted a request for
reconsideration on behalf of appellant on November 6, 2017.3 On December 20, 2017 he inquired
about the status of that reconsideration request.
OWCP, in a January 4, 2018 response, informed Mr. Casey that it was unable to
communicate with him as appellant had not designated him as her authorized representative. It
enclosed instructions regarding how to designate a representative before OWCP.
On February 22, 2018 appellant again authorized Mr. Casey as her representative before
OWCP.
By letter dated March 8, 2018, OWCP advised Mr. Casey that it had not received a request
for reconsideration subsequent to its November 7, 2016 decision.
Mr. Casey, on March 20, 2018, provided a copy of the November 6, 2017 letter requesting
reconsideration. The November 6, 2017 request for reconsideration was signed by Mr. Casey. He
further enclosed a certified mail receipt indicating that an envelope had been mailed to OWCP on
November 6, 2017.
In support of appellant’s request for reconsideration, Mr. Casey submitted an October 20,
2017 report from Dr. Peter Wu, who specializes in family medicine. Dr. Wu found that she had
continued limitations from a June 4, 2014 employment injury. He indicated that appellant’s work
activities on June 4, 2014 had aggravated her underlying lumbar condition. Dr. Wu noted that a
magnetic resonance imaging (MRI) scan study showed a bulging disc. He opined that appellant
had continued limitations and disability resulting from her June 4, 2014 employment injury.
By decision dated March 22, 2018, OWCP denied appellant’s March 20, 2018 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It noted that Mr. Casey was not her authorized representative at the time that he may have
requested reconsideration by letter dated November 6, 2017. OWCP further found that the
medical evidence from Dr. Wu was insufficient to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal

3

The Board notes that the record does not show that a November 6, 2017 request for reconsideration was received
prior to March 20, 2018.
4

5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a).

3

Employees’ Compensation System (iFECS).6 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.7
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.8 If a request for
reconsideration demonstrates clear evidence of error, OWCP will reopen the case for merit
review.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.10
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.11
The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.12

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

7

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9
M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 6 at Chapter
2.1602.5 (February 2016).
10

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

11

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 6 at Chapter 2.1602.5(a) (February 2016).

12

D.S., Docket No. 17-0407 (issued May 24, 2017).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s March 20, 2018 request for
reconsideration13 as it was untimely filed and failed to demonstrate clear evidence of error.
An application for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.14 As appellant’s request for reconsideration was not received
by OWCP until March 20, 2018, more than one year after the issuance of its November 7, 2016
decision, it was untimely filed. Consequently, she must demonstrate clear evidence of error by
OWCP in its November 7, 2016 decision.15
The Board further finds that appellant has not demonstrated clear evidence of error on the
part of OWCP in its November 7, 2016 decision.
Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its November 7, 2016 decision.16 OWCP
denied her claim as she failed to submit medical evidence sufficient to establish that she had
sustained a diagnosed condition causally related to the accepted June 4, 2014 employment
incident. In a report dated October 20, 2017, Dr. Wu opined that appellant had aggravated an
underlying lumbar condition at work on June 4, 2014. He indicated that she continued to
experience limitations resulting from her claimed June 4, 2014 employment injury. While Dr. Wu
diagnosed an aggravation of a lumbar condition due to a June 4, 2014 employment injury, as
previously noted, clear evidence of error is intended to represent a difficult standard.17 Even the
submission of a detailed, well-rationalized report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, does not
constitute clear evidence of error.18 It is not enough to show that evidence could be construed so
as to produce a contrary conclusion.19 Instead, the evidence must shift the weight in appellant’s
13
With the March 20, 2018 reconsideration request, J.C. enclosed a request for reconsideration he had signed and
dated November 6, 2017. He provided a certified mail receipt showing that an envelope was mailed to OWCP on that
date. Mr. Casey, however, was not appellant’s authorized representative as of November 6, 2017. OWCP’s
implementing regulations clearly provide that for a representative to be recognized by OWCP, the claimant must
submit a signed written notice to OWCP appointing the representative. Appellant advised OWCP in writing on
August 17, 2016 that Mr. Casey was no longer her authorized representative. She instead had designated
Mr. Apfelbaum as her representative. Appellant signed an authorization form on February 22, 2018 again designating
Mr. Casey as her authorized representative before OWCP. There is no evidence that Mr. Casey was appellant’s
authorized representative at the time the November 6, 2017 letter was submitted. Consequently, the November 6,
2017 correspondence is not a request for reconsideration of OWCP’s November 7, 2016 decision as it was not signed
by appellant or her authorized representative. See 20 C.F.R. § 10.700(a).
14

20 C.F.R. § 10.607(a).

15

Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

16

See R.M., Docket No. 18-1393 (issued February 12, 2019).

17

W.R., Docket No. 18-1042 (issued February 12, 2019).

18

E.K., Docket No. 18-0422 (issued August 22, 2018).

19

Id.

5

favor.20 The Board finds that the October 20, 2017 report from Dr. Wu does not rise to the level
of clear evidence of error.21
Appellant has not raised an argument or submitted any evidence that manifests on its face
that OWCP committed an error in denying her claim. She has not provided evidence of sufficient
probative value to raise a substantial question as to the correctness of OWCP’s decision. Thus,
the evidence is insufficient to establish clear evidence of error.22
CONCLUSION
The Board finds that OWCP properly denied appellant’s March 20, 2018 request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 22, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2019
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

20

R.S., Docket No. 18-0505 (issued July 24, 2018).

21

See E.B., Docket No. 18-1091 (issued December 28, 2018).

22

See M.B., Docket No. 17-1505 (issued January 9, 2018).

6


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

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

Docket No. 14-1071
Issued: October 3, 2014

Case Submitted on the Record

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

JURISDICTION
On April 8, 2014 appellant filed a timely appeal from a February 18, 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 appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty.
FACTUAL HISTORY
On December 17, 2013 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim alleging that on December 14, 2013 he sustained a sprained right wrist as a result of a
motor vehicle accident. He stopped work on December 14, 2013. A December 19, 2013 U.S.
1

5 U.S.C. § 8101 et seq.

Postal Service accident report stated that appellant was struck head-on by another driver who
was driving in the wrong lane.
In a December 14, 2013 unsigned hospital report, appellant was diagnosed with multiple
contusions and a sprain. Another December 14, 2013 emergency department note advised that
appellant was unable to return to work for at least 24 hours.
A January 10, 2014 OWCP field nurse report acknowledged that appellant was involved
in a motor vehicle accident and was currently being treated for multiple sprains and cervical
radiculopathy.
In a letter dated January 10, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish the claim because the medical evidence did not contain a medical
diagnosis or a physician’s opinion as to how appellant’s injury resulted in a diagnosed condition.
Appellant was also advised that he had 30 days to submit the requested documents.
OWCP subsequently received a December 14, 2013 Georgia motor vehicle accident
report which stated that appellant’s mail truck was struck by another driver, driving in the wrong
lane. The report advised that appellant was unconscious when police arrived on the scene, but
later regained consciousness.
In December 14, 2013 emergency room treatment notes, a nurse stated that appellant’s
vehicle was hit head-on while delivering mail. Appellant was driving approximately 10 miles
per hour when the accident occurred. A nurse advised that appellant complained of shoulder and
chest pain and tenderness of his shoulder, right wrist and right elbow. Dr. Brent Morgan, Boardcertified in emergency medicine and medical toxicology, cosigned the treatment notes and
advised that x-rays were negative for fracture and dislocation. X-rays of the chest also failed to
reveal any abnormalities. Appellant was diagnosed with a sprain, but Dr. Morgan did not specify
which part of the body.
Appellant also submitted a December 17, 2013 chiropractor report from Airport Spinal
Injury Clinic diagnosing lumbar sprain/strain, cervical strain/sprain, myospasm/myofascitis and
shoulder strain/sprain. In a December 30, 2014 report, Dr. Anthony Dinatale, a chiropractor,
advised that appellant would be totally incapacitated from December 30, 2013 to
January 17, 2014. In a subsequent attending physician report (CA-20), he diagnosed lumbar
strain, sprain of the right shoulder, myospasm and cervical radiculitis. Dr. Dinatale noted that
appellant was involved in a motor vehicle accident and checked the box “yes” in response to
whether the injury was caused by employment activity. He advised that appellant would be able
to return to his regular duties on January 20, 2014.
In a January 24, 2014 claim for compensation (Form CA-7), appellant requested
compensation for the period December 14, 2013 through January 17, 2014. He also submitted a
copy of his December 19, 2013 ambulance bill.
By decision dated February 18, 2014, OWCP denied appellant’s claim because the
medical evidence was insufficient to establish that the employment incident caused or
contributed to a diagnosed medical condition.

2

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his or her
disability for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
On December 14, 2013 appellant was working when his truck was struck by a car driving
in the wrong lane. The evidence supports that the claimed work incident occurred as alleged.
Therefore, the Board finds that the first component of fact of injury is established. However, the
medical evidence is insufficient to establish that the employment incident on December 14, 2013
caused an injury.
Although Dr. Morgan diagnosed a sprain in his December 14, 2013 hospital report, he
did not identify which part of appellant’s body was sprained.7 Additionally, Dr. Morgan did not
otherwise specifically address how the December 14, 2013 work incident caused appellant to
sustain a medical condition. Thus, his opinion is insufficient to establish appellant’s claim.

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

See R.G., Docket No. 14-113 (issued April 25, 2014) (a diagnosis of muscle strain was found to be vague as the
physician did not identify what muscle or group of muscles were strained).

3

Appellant submitted numerous reports from Dr. Dinatale, a chiropractor. Medical
opinion, in general, can only be given by a qualified physician.8 Under FECA, a “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by State law.9
Chiropractors are considered “physicians” within the meaning of FECA only to the extent that
there is a subluxation of the spine as demonstrated by x-ray.10 Dr. Dinatale did not diagnose a
spinal subluxation of the spine as demonstrated by an x-ray; therefore, he is not a physician
within the meaning of FECA and his reports are not entitled to any probative medical weight.11
As a result, the medical evidence is insufficient to discharge appellant’s burden of proof.
The Board finds that appellant did not submit sufficient medical evidence from a
physician which provided a firm diagnosis and a reasoned explanation as to how the accepted
incident caused an injury. Appellant therefore failed to establish that he has a medical condition
resulting from the December 14, 2013 employment incident.
Appellant may submit new evidence or argument as part of a formal 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.
The Board notes that appellant was transported by ambulance to an emergency room
shortly after the December 14, 2013 incident occurred. Ordinarily, the employing establishment
will authorize treatment of a job-related injury by providing the employee a properly executed
Form CA-16 within four hours. See 20 C.F.R. § 10.300; Val D. Wynn, 40 ECAB 666 (1989); a
Form CA-16, authorization of medical care was not issued in this case. However, under 5 U.S.C.
§ 8103, OWCP has broad discretionary authority to approve unauthorized medical care which it
finds necessary and reasonable in cases of emergency or other unusual circumstances. Upon
return of the case record, OWCP shall determine whether appellant’s ambulance transportation
and initial medical care in the hospital emergency room should be authorized pursuant to 20
C.F.R. § 10.304, which provides that in cases involving emergencies or unusual circumstances,
OWCP may authorize treatment in a manner other than as stated in this subpart. See J.D.,
Docket No. 14-936 (issued August 8, 2014); L.B., Docket No. 10-469 (issued June 2, 2010).
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on December 14, 2013.

8

Charley V.B. Harley, 2 ECAB 208, 211 (1949).

9

5 U.S.C. § 8101(2).

10
11

Id.
Allen C. Hundley, 53 ECAB 551 (2002); Lyle E. Dayberry, 9 ECAB 369 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
ENVIRONMENTAL PROTECTION AGENCY,
REGION VI, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1102
Issued: December 28, 2018

Case Submitted on the Record

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

JURISDICTION
On April 24, 2017 appellant filed a timely appeal from a March 27, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional condition
while in the performance of duty, as alleged.
FACTUAL HISTORY
On February 3, 2017 appellant, a then 41-year-old branch secretary, filed an occupational
disease claim (Form CA-2) alleging that she sustained an emotional condition while in the
performance of duty. She stated that the harassing, bullying, intimidating, and disparate treatment
1

5 U.S.C. § 8101 et seq.

from her managers was causing her stress and aggravating her myalgia. Appellant advised that
she had an ongoing Equal Employment Opportunity (EEO) case. She indicated that she first
became aware of her emotional condition and related it to her federal employment on
December 29, 2016. Appellant did not stop work.
In support of her claim, appellant submitted leave bank forms and a December 30, 2016
e-mail message to her temporary supervisor, M.O., indicating that she had been experiencing
stress, scrutiny, and harassment at work and attempted to work from home, but was unable to use
her reasonable accommodation and forced to take medical leave until January 9, 2017.
In an August 18, 2016 report, Dr. Suzanne Slonim, a Board-certified radiologist, advised
that appellant had uterine fibroids causing severe pelvic pain and anemia. After treatment of the
fibroids, appellant would have severe pain, nausea, fever, and require narcotic medication.
Dr. Slonim opined that appellant would be disabled from work for one week and may require a
second week of working from home. After two weeks, appellant would be capable of returning to
full-time work. On August 31, 2016 Dr. Slonim indicated on a prescription note that appellant
underwent a “medical procedure” on August 26, 2016. She advised that appellant would be on
restricted activity and unable to return to work until September 12, 2016.
In reports dated December 5 and 12, 2016, Dr. Sumana Gangi, a Board-certified
endocrinologist, indicated that appellant was seen for a medical condition and then released to
work on December 6 and 13, 2016, respectively. In an October 21, 2016 report, he indicated that
appellant was very stressed from work and had undergone a procedure for fibroids. Appellant had
broken out in a rash on her face, gained 11 pounds, and presented with intermittent fatigue.
Dr. Gangi noted that she denied weight loss, myalgia, and joint pains.
In an e-mail message dated December 27, 2016, M.O. stated that she had reviewed
appellant’s request to telework until January 9, 2017 and had serious concerns that it would inhibit
her ability to perform several of the nonportable essential functions of her job, such as acting as
the initial contact for the organization, processing and coding mail, answering telephones,
preparing, printing, and mailing correspondence, and making copies, among other duties.
Appellant submitted documentation related to her EEO case, including a statement of
claims that her previous supervisor, J.S., had failed to provide an adequate reasonable
accommodation since December 2015, placed additional restrictions on her use of telework on
March 21, 2016, excluded her from social activities on April 1, 2016, excluded her from knowing
about work-related information on April 5, 2016, approved an ineffective interim accommodation
that required her to request episodic flexiplace each time she needed to telework due to her health
issues on March 29, 2016, questioned what she would be working on while teleworking on
March 31, 2016, and required her to take leave when portable work was available on
June 10, 2016.
In a December 16, 2016 e-mail correspondence, appellant indicated that she was working
on an affidavit that needed to be completed by Tuesday, December 20, 2016 and M.O. replied that
she was happy to grant her official time to review her work product during work hours, but could
not grant her comp time to do this work over the weekend. The supervisor further indicated that
if appellant did not feel that she could accomplish the work product review in addition to her other

2

duties during working hours and still meet the December 20, 2016 deadline, she could either
request an extension or they could discuss which of her work duties they could de-prioritize on
Monday and Tuesday in order to meet her deadline.
In a December 27, 2016 e-mail message, M.O. stated that appellant had requested up to 10
hours to review the affidavit over the weekend of December 17 to 18, 2016 so she assumed she
had the affidavit to review. She indicated that they had a conversation on Monday, December 19,
2016 about work priorities and appellant told her that they were focusing on her core work duties
on Monday and planned to work on the affidavit review on Tuesday. Then appellant left work
early on Tuesday and took leave for the rest of the week. M.O. stated that once appellant received
the affidavit, she would be happy to give appellant the time she needed to review it, stating “Just
let me know ahead of time so I know what you [a]re working on.” On December 27, 2016
appellant replied that she was not approved to work on the EEO that weekend so she only took
one hour to work on the investigation because she did not have M.O.’s approval. M.O. stated that
when she disapproved appellant’s request for comp time, she told her that she would be happy to
grant her official time during work hours. She further indicated that if there was some work that
appellant still needed to do on the EEO matter, she was willing to grant appellant official time to
work on it while she was teleworking that week.
In a December 28, 2016 e-mail message, appellant stated that per her doctor’s letter
previously submitted to M.O. regarding her reasonable accommodation due to her serious health
issues related to her disabilities to work from home because she should not operate a vehicle, she
would be submitting a leave request from December 28, 2016 to January 9, 2017 due to serious
health issues and stress-related issues because of continued harassment and bullying type of
behavior from previous and current managers.
In a second December 28, 2016 e-mail message, appellant stated that she had worked for
the employing establishment since December 1, 2014 after which she was transferred from another
agency as a Schedule A disabled employee. After one year of employment, she requested
reasonable accommodation because her health issues had changed and she participated in
mediation because the agency failed to provide an adequate accommodation and disregarded the
deadlines to respond to the reasonable accommodation. After the mediation, she was transferred
to another division because her medical conditions were getting worse. Appellant reiterated that
she was dealing with harassing, intimidating, bullying, and disparate treatment and discriminating
behavior from her supervisors and filed a formal EEO complaint.
On December 29, 2016 Dr. Valerie Peterson, a Board-certified family practitioner,
diagnosed severe anxiety and stress. She reported that appellant was not able to focus or multitask at work and advised that she needed to be at home. Dr. Peterson opined that appellant would
be capable of returning to the workplace on January 9, 2017.
In a supervisory statement dated February 1, 2017, M.O. indicated that she became
appellant’s temporary supervisor on October 31, 2016 and approved her telework requests, time
and leave, and assisted with prioritizing her assignments and working as the go-between of her
and her supervisor of record. She stated that she had approved appellant’s leave request for
December 28, 2016 to January 9, 2017. On Friday, December 16, 2016 appellant requested to
work over the weekend of December 17 to 18, 2016, which were her regular days off. She

3

requested to be compensated via compensatory time during this time period and the purpose of the
request was to review a work product related to her EEO complaint. Being unaware of any policy,
rule, or regulation that permitted such a request, M.O. denied appellant’s request and offered her
the alternative of using more official time during her regular tour of duty. Appellant then asked if
she could be approved to work official time on Monday, December 19, 2016 to review the work
product and M.O. approved her request.
By development letter dated February 22, 2017, OWCP advised appellant of the
deficiencies of her claim and afforded her 30 days to submit additional evidence and respond to
its inquiries.
In response, appellant submitted a position description and resubmitted e-mail
correspondence dated December 16 to 28, 2016.
Appellant further submitted a December 28, 2016 e-mail to M.O. stating the following, “I
will not go back and forward with you on anymore issues you are very intimidating to me.”
In a January 26, 2017 e-mail message, M.O. stated that she was following up to their
discussion last Thursday, January 19, 2017 where appellant offered to withdraw her EEO
complaints in exchange for a grade increase to GS-11 doing special assistant-type work for her in
the Air Enforcement branch in addition to continuing to do her administrative Water Enforcement
branch work. The supervisor informed appellant that she had been advised to tell her that because
she was in a formal process, any negotiations about a settlement must be done within the
parameters of that process.
In an undated statement, M.O. indicated that appellant reported December 29, 2016 as the
date she first became aware of her emotional condition and that time period was actually a time of
reduced work demands due to the fact that most of the branch employees for whom appellant
provided administrative support were out of the office on holiday leave. Appellant had been
granted a reasonable accommodation to enable her to work from home during periodic and
unplanned flare-ups of a physical condition which M.O. supported. The supervisor stated that
during the time period in question there was no staffing shortage and workload decreased due to
the number of staff on holiday leave. Appellant’s performance for the fiscal year 2016 and prior
met or exceeded expectations. Since she was placed under M.O.’s temporary supervision appellant
was counseled regarding behavioral concerns and professional demeanor in the workplace after
reports that she had been unprofessional with an employee at the Cincinnati Human Resources
Shared Service Center office. In January 2017, M.O. met with appellant to gather the facts around
a meeting she had with senior management to discuss work projects that she was not assigned to.
Appellant attended a meeting she had not been authorized nor asked to attend and M.O. wanted to
understand how that workplace issue came to pass. The supervisor noted that the meeting took
place in January 2017 after she originally asked appellant for a discussion in December 2016.
By decision dated March 27, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish an emotional condition arising from a compensable
factor of employment. It found that appellant alleged the following employment factors: (1) that
she was not able to focus at work due to work-related stress relating to her EEO complaints; (2) she
had been off and on leave for long periods of time due to these injuries; and (3) behavior from her

4

managers was causing stress, which was aggravating her myalgia. OWCP found that the alleged
incidents did not occur because appellant was off work due to her personal-related medical
condition. It further found no evidence to establish harassment, bullying, or intimidation by the
employing establishment. OWCP noted that the e-mail correspondence between appellant and her
supervisor who requested information regarding work product while teleworking was within the
realm of administrative procedures.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.2 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.3
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from a claimant’s performance of his or her regular duties,
these could constitute employment factors.4 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.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.6 However, the Board has
held that where the evidence establishes error or abuse on the part of the employing establishment
in what would otherwise be an administrative matter, coverage will be afforded.7 In determining
whether the employing establishment has erred or acted abusively, the Board will examine the
factual evidence of record to determine whether the employing establishment acted reasonably.8

2

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

See Gregorio E. Conde, 52 ECAB 410 (2001).

4

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

5

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

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42
ECAB 556 (1991).
7

See William H. Fortner, 49 ECAB 324 (1998).

8

See Ruth S. Johnson, 46 ECAB 237 (1994).

5

A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions, which believes caused or adversely affected
a condition for which compensation is claimed and a rationalized medical opinion relating the
claimed condition to compensable employment factors.10
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.11 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.12
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must, thus,
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board notes that appellant’s allegations do not
pertain to her regular or specially assigned duties under Cutler.13 Rather, she has alleged that she
was not able to focus at work due to work-related stress relating to her EEO complaints, she had
been off and on leave for long periods of time due to these injuries, and behavior from her
managers was causing stress, which was aggravating her myalgia.
The Board has long held that grievances and EEO complaints by themselves do not
establish that workplace harassment or unfair treatment occurred.14 The Board finds that the
employing establishment’s report of investigation of appellant’s previous supervisor, J.S., is not a
finding of harassment. In the absence of such a finding, the evidence of record is insufficient to
discharge appellant’s burden of proof to substantiate her allegations of harassment in the
workplace.

9

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

10

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

11

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

12

Id.

13

See Lillian Cutler, supra note 2.

14

See Parley A. Clement, 48 ECAB 302 (1997).

6

For harassment to give rise to compensability under FECA there must be evidence that
harassment did, in fact, occur. Mere perceptions of harassment are not compensable under
FECA.15 The Board has recognized the compensability of verbal altercations or abuse when
sufficiently detailed by the claimant and supported by the record. This does not imply, however,
that every statement uttered in the workplace will give rise to compensability.16 In this case,
OWCP found that appellant was not subjected to any harassment and did not submit any evidence
substantiating her allegations. Specifically, there is no evidence substantiating any derogatory
remarks made by M.O. to appellant. On the contrary, the record establishes that M.O. had a
conversation with appellant on December 19, 2016 about work priorities and appellant told her
that they were focusing on her core work duties on Monday and planned to work on the EEO
affidavit review on Tuesday. M.O. further indicated that if there was some work that she still
needed to do on the EEO matter, she was willing to grant appellant official time to work on it while
she was teleworking that week. However, appellant left work early on Tuesday and took leave for
the rest of the week.
The record does not contain witness statements corroborating appellant’s narrative
statements regarding the allegedly harassing, bullying, or intimidating behavior. The evidence of
record, therefore, is insufficient to establish that any of the alleged incidents rose to the level of
verbal abuse or otherwise constituted a compensable work factor.17 The Board finds no evidence
substantiating appellant’s contention that she was harassed by M.O.
Because appellant has not presented sufficient evidence that she was harassed by her
supervisors, she has failed to identify a compensable work factor.18 Thus, she has not met her
burden of proof to establish a claim.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

15

See supra note 5.

16

See David C. Lindsey, 56 ECAB 263 (2005). The mere fact that a supervisor or employee may raise his or her
voice during the course of an argument does not warrant a finding of verbal abuse. Joe M. Hagewood, 56 ECAB
479 (2005).
17

See J.J., Docket No. 07-2014 (issued January 24, 2008).

18

See H.C., Docket No. 12-457 (issued October 19, 2012).

19
As appellant has not established a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2018
Washington, DC

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

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

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

8