United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Warminster, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2392
Issued: April 21, 2009

Case Submitted on the Record

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

JURISDICTION
On September 2, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated November 20, 2007 and June 20, 2008.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.

1

The Board notes that, the Office’s November 20, 2007 decision denied appellant’s recurrence claim. On
June 20, 2008 the Office hearing representative found that it improperly adjudicated appellant’s claim as one for a
recurrence of disability and that his claim raised the issue of whether a modification of the November 8, 2006 wageearning decision was warranted. See Katherine T. Kreger, 55 ECAB 633 (2004). Once the wage-earning capacity
of an injured employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been retrained or
otherwise vocationally rehabilitated or the original determination was, in fact, erroneous. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.11(a)
(October 2005).

ISSUE
The issue is whether the Office hearing representative properly denied modification of
the November 8, 1996 loss of wage-earning capacity determination.
FACTUAL HISTORY
On January 26, 1994 appellant, then a 39-year-old letter carrier, filed an occupational
disease claim for an alleged work-related elbow condition. The Office accepted his claim for
right elbow epicondylitis and paid all appropriate compensation benefits. On May 15, 1997
appellant underwent approved right lateral epicondylar release surgery.
In a report dated June 7, 1996, appellant’s treating physician, Dr. David J. Bozentka, a
Board-certified orthopedic surgeon, opined that appellant was able to work full time with
restrictions. He recommended that repetitive activities with the right upper extremities be
limited and that appellant be restricted from lifting, pushing or pulling more than 25 pounds.
The record contains a description of a modified carrier position, which was approved by
Dr. Bozentka on September 20, 1996. Duties included filing change of address cards; collecting
mail from the throw back case, delivering express mail and AARP, collecting mail and
publication notification. Physical requirements of the position included intermittent standing,
walking and sitting for eight hours per day, intermittent lifting up to 25 pounds four hours per
day and intermittent bending, squatting and kneeling four hours per day.
On October 12, 2006 appellant returned to full-time limited-duty work as a modified
letter carrier at a wage of $36,551.00 per year. In a decision dated November 8, 1996, the Office
determined that on September 6, 1996, the employing establishment made a formal job offer,
which was approved by appellant’s attending physician on September 20, 1996. It found that
this position fairly and reasonably represented his wage-earning capacity and that his actual
wages met or exceeded the wages of the job he held when injured. Therefore, the Office reduced
appellant’s compensation benefits to zero.
In a letter dated June 21, 2004, the employing establishment informed appellant that, due
to changing workloads and conditions, it had become necessary to reevaluate and update his
current limited-duty position. In that a new Postal Automated Redirect System (PARS) was
being implemented, there would no longer be a need to file change of address cards at the local
level. The establishment provided an offer of a modified carrier position. Restrictions included
sitting, standing and driving up to 7.5 hours per day and lifting up to 25 pounds. On July 23,
2004 appellant objected to any modification of his limited-duty job, contending that his current
position was within his medical restrictions.
On December 14, 2004 Dr. Bozentka opined that appellant was capable of working 40
hours per week, with no overtime and that he was not limited in his ability to sit, stand, walk or
twist, so long as he did not work more than eight hours per day. He recommended against
repetitive activities with the right upper extremity. Other restrictions included a maximum of
four hours of intermittent pushing, pulling, bending, stooping, kneeling or simple grasping and

2

fine manipulation with the right upper extremity. Dr. Bozentka also recommended against lifting
or carrying more than 25 pounds and from lifting over the shoulder.
On December 29, 2004 the employing establishment offered appellant a modified
position which required him to sit, stand and drive up to eight hours and to lift up to 25 pounds.
Appellant objected to the position and the Office disapproved it, as vague and failing to identify
physical requirements. A January 18, 2005 offer of modified duty required appellant to sit,
stand, twist, bend, stoop, kneel and drive up to four hours and lift up to 25 pounds intermittently.
He accepted the position under protest.
On January 28, 2005 Dr. Bozentka stated that appellant should not be driving for seven to
eight hours at a time and that his driving should be limited to four hours per day. He noted that
limiting his driving time would permit recovery of his recent back injury. On May 18, 2005
Dr. Bozentka indicated that appellant had a partial biceps tendon tear on the left. Noting that all
of the positions offered by the employing establishment would increase his work activities, he
opined that appellant should continue in his current position.
In a January 30, 2007 report, Dr. Bozentka stated that he had been treating appellant since
1996 for right lateral epicondylitis and since 2002 for a left distal biceps injury. He reiterated
earlier restrictions, which included working 40 hours with no overtime; no repetitive activity
with the right upper extremity and no over-the-shoulder lifting. Dr. Bozentka also recommended
that appellant be limited to performing the following tasks intermittently for a maximum of four
hours per day: bending, stooping, kneeling, simple grasping and fine muscle manipulation,
pushing, pulling and lifting or carrying up to 25 pounds.
On March 16, 2007 the employing establishment again offered appellant a modified-duty
assignment, which provided for a 40-hour workweek, with no overtime. The position required
that appellant deliver mail, walk, drive a maximum of four hours per day and that he lift no more
than 25 pounds. On March 19, 2007 he rejected the modified-duty offer.
In a letter dated March 22, 2007, the Office indicated that it had reviewed the March 16,
2007 job offer. It questioned why the employing establishment was issuing appellant another job
offer, noting that a determination had already been made as to the type of work the claimant is
able to perform, pursuant to the November 8, 1996 wage-earning capacity decision.
On August 3, 2007 the employing establishment made another offer of modified duty.
Required duties included four hours of mail delivery, with combined walking and driving, lifting
up to 25 pounds, up to four hours of fine manipulation and simple grasping; answering
telephones, and intermittent walking, stooping and bending. Appellant rejected the modifiedduty offer on August 3, 2007. On August 7, 2007 Dr. Bozentka recommended against accepting
a position that required repetitive activities of the right upper extremity.
On August 11, 2007 appellant filed a claim for a recurrence of disability, beginning
August 3, 2007, when he received an offer of a modified-duty job. He alleged that the
employing establishment denied his request for time to obtain approval from the Office and his
physician and that, when he refused to accept the position, he was told to go home. The record

3

reflects that appellant filed a grievance contending that he should be allowed to retain the
limited-duty job that he was assigned.
The Office referred appellant to Dr. Steven J. Valentino, a Board-certified osteopath,
specializing in orthopedic surgery, for a second opinion examination and a reasoned medical
opinion as to whether appellant’s current condition was causally related to the work injury. In an
October 23, 2007 report, he provided a history of injury and treatment, indicating that appellant
began working full time on October 12, 1996 in the modified carrier position, which the Office
found to be within his medical restrictions. Appellant informed him that he stopped working on
August 3, 2007, when the employing establishment withdrew his light-modified position and
offered him another modified job, which required him to carry mail for four hours per day. A
neurologic examination showed 4/5 weakness about the left biceps with findings consistent with
proximal biceps tear. Deep tendon reflexes were intact, motor and sensory examinations were
normal and there were no pathologic reflexes. Examination of the upper extremities revealed
full range of motion about the shoulders, elbows, wrists and hands. Circumferential
measurements of the elbows were symmetric at 9½ inches. There was mild tenderness over the
right lateral epicondylar region. Forearm and wrist examinations were normal, with
circumferential measurements about the forearms symmetric at 10 inches. Mien’s, Wright’s,
Roos’, Phalen’s, reverse Phalen’s, ulnar stretch tests and Tinel’s signs were negative. There was
no evidence of reflex sympathetic dystrophy. Brachial plexus and thoracic outlet examinations
were normal. Dr. Valentino diagnosed right lateral epicondylitis. He opined that appellant had
no residuals from the accepted injury and stated that he could work full-time with permanent
restrictions in order to avoid a recurrence of injury, particularly the association between
repetitive activities involving the right upper extremity and recurrence of lateral epicondylitis.
In a decision dated November 20, 2007, the Office denied appellant’s recurrence claim,
finding that the evidence did not establish that the claimed recurrence resulted from the accepted
work injury. It found that appellant had refused a suitable light-duty position, which was
acceptable to his treating physician and Dr. Valentino.
On December 12, 2007 appellant requested an oral hearing, which was held on
April 10, 2008. At the hearing, he reiterated his contention that he had sustained a recurrence of
disability when the employing establishment withdrew his light-duty assignment and insisted
that he accept a position with requirements that exceeded his restrictions.
In a letter dated January 23, 2008, the Office of Personnel Management (OPM) informed
appellant that he was found to be disabled from his position as a full-time letter carrier due to
lateral epicondylitis of the right elbow, degenerative disc disease of the lumbar spine, stress and
anxiety.
In a letter dated March 11, 2008, Dr. Bozentka stated that appellant had severe lateral
epicondylitis that had been unresponsive to treatment. After reviewing the list of appellant’s job
duties as mail carrier for 16 years, a copy of the modified job offer and the job description for a
mail carrier from the National Association of Letter Carriers, Dr. Bozentka opined that appellant
would not be capable of performing the duties of a letter carrier.

4

By decision dated June 20, 2008, the Office hearing representative found that the Office
had erroneously adjudicated the issue of whether appellant had established a recurrence of
disability. Rather, the representative determined that the issue was whether the evidence
established that the November 8, 1996 loss of wage-earning capacity (LWEC) decision should be
modified. The hearing representative found that the evidence did not establish that the original
LWEC was erroneously issued, that appellant’s medical condition had changed or that appellant
had been vocationally rehabilitated. Accordingly, he affirmed and modified the November 20,
2007 decision to reflect that the evidence was insufficient to establish that the November 8, 1996
zero LWEC should be modified.2
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.3 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.5 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.6
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that the
November 8, 1996 wage-earning capacity decision should be modified. Therefore the Office
hearing representative’s June 20, 2008 decision should be affirmed.
The Office accepted that appellant developed right elbow epicondylitis due to
employment activities and approved right lateral epicondylar release surgery. On November 8,
1996 it determined that his actual earnings as a modified letter carrier fairly and reasonably
represented his wage-earning capacity. Appellant claimed a recurrence of disability as of
August 3, 2007 due to the Office’s withdrawal of his limited-duty position. In a decision dated
November 20, 2007, it found that the medical evidence was insufficient to show an employmentrelated recurrence of disability. On June 20, 2008 an Office hearing representative affirmed and
2

The Board notes that the record on appeal contains additional evidence which was not before the Office at the
time it issued its December 1, 2006 decision. The Board has no jurisdiction to review this evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c). See also Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5
ECAB 35, 36 n.2 (1952).
3

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

4

Sharon C. Clement, 55 ECAB 552 (2004).

5

Tamra McCauley, 51 ECAB 375, 377 (2000).

6

Id.

5

modified the November 20, 2007 decision to reflect that the evidence was insufficient to
establish that the November 8, 1996 zero LWEC should be modified. The Board finds that the
hearing representative properly evaluated appellant’s claim as a request for modification of the
1996 LWEC decision. Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless there is a material change in the
nature and extent of the injury-related condition, the employee has been retrained or otherwise
vocationally rehabilitated or the original determination was, in fact, erroneous.7 If a claimant is
seeking modification, he must establish that the original rating was in error or that the injuryrelated condition has worsened.8
Appellant did not allege that the original LWEC determination was erroneous. In fact, he
has repeatedly objected to any change of the modified carrier position, which he accepted and
performed for 16 years and which was approved by his treating physician, contending that its
duties were within his medical restrictions. There is also no evidence that the position was parttime, seasonal or temporary or that the wages received were not equal to or greater than his
wages on the date of injury. The issue, therefore, is whether appellant has established a material
change in the nature and extent of his injury-related condition warranting modification of the
November 8, 1996 wage-earning capacity determination.
The modified carrier position, which the Office found to fairly and reasonably represent
appellant’s wage-earning capacity, was approved by Dr. Bozentka on September 20, 1996.
Duties included filing change of address cards, collecting mail from the throw back case,
delivering express mail and AARP, collecting mail and publication notification. Physical
requirements of the position included intermittent standing, walking and sitting for eight hours
per day, intermittent lifting up to 25 pounds four hours per day and intermittent bending,
squatting and kneeling four hours per day. There is no probative medical evidence of record
establishing that appellant’s accepted condition had worsened by August 3, 2007 to the degree
that he was unable to perform the duties of the modified position.
Appellant’s treating physician consistently opined that appellant was capable of
performing the duties of the modified position on which the 1996 LWEC decision was based.
Following the employing establishment’s notification of its intent to revise his modified position,
several modified offers were made to appellant, which included additional physical
requirements, including driving. On January 28, 2005 Dr. Bozentka stated that appellant should
not be driving for seven to eight hours at a time and that his driving should be limited to four
hours per day. Noting that all of the positions offered by the employing establishment would
increase his work activities, Dr. Bozentka opined that appellant should continue in his current
position. On January 30, 2007 he reiterated earlier restrictions, which included working 40 hours
with no overtime, no repetitive activity with the right upper extremity and no over-the-shoulder
lifting. Dr. Bozentka also recommended that appellant be limited to intermittent bending,
stooping, kneeling, simple grasping and fine muscle manipulation, pushing and pulling for a
maximum of four hours per day and lifting or carrying up to 25 pounds. These restrictions were
7

Tamra McCauley, supra note 5.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11(b) (October 2005).

6

not inconsistent with those provided in 1996. Moreover, the report did not provide findings on
examination from which a determination could be made as to appellant’s ability to perform the
functions of the modified position.
On August 7, 2007 Dr. Bozentka recommended against accepting a position that required
repetitive activities of the right upper extremity. The Board notes, however, that none of his
reports identifies or supports appellant’s inability to perform, the specific physical requirements
of the modified carrier position approved by the Office in 1996. The fact that appellant may
arguably be unable to perform another position offered by the employing establishment, which
has different physical requirements, is not relevant to the issue at hand, namely, whether
appellant has established a material change in the nature and extent of his injury-related
condition such that he is unable to perform the duties of the job on which the November 8, 1996
wage-earning capacity determination was based.
On March 11, 2008 Dr. Bozentka stated that appellant had severe lateral epiondylitis that
had been unresponsive to treatment. After reviewing the list of appellant’s job duties as mail
carrier for 16 years, a copy of the modified job offer and the job description for a mail carrier
from the National Association of Letter Carriers, Dr. Bozentka opined that appellant would not
be capable of performing the duties of a letter carrier. However, he did not identify the specific
duties that would exceed appellant’s restrictions nor did he explain how the accepted condition
would prevent him from performing those duties. The Board also notes that it is unclear whether
Dr. Bozentka’s opinion that appellant would not be capable of performing the duties of a letter
carrier, relates to the modified position approved in 1996, a subsequent modified job offer or the
job description for a mail carrier from the National Association of Letter Carriers. For all of
these reasons, Dr. Bozentka’s report is of diminished probative value.
Dr. Valentino’s second opinion report undermines appellant’s claim that his condition has
worsened since the Office issued its November 8, 1996 LWEC decision. He provided a history
of injury and treatment, indicating that appellant began working full time on October 12, 1996 in
the modified carrier position, which the Office found that to be within his medical restrictions.
Dr. Valentino diagnosed right lateral epicondylitis. He opined that appellant had no residuals
from the accepted injury and stated that he could work full-time with permanent restrictions in
order to avoid a recurrence of injury.9 Dr. Valentino’s finding that the accepted condition had
resolved does not support, but rather refutes, appellant’s claim that his condition had worsened.
Appellant contends that he is entitled to compensation after August 3, 2007, when the
employing establishment withdrew its limited-duty position. However, the issue is not whether
the employing establishment improperly withdrew the limited-duty assignment, but rather
whether the LWEC decision should be modified. Office procedures provide that when the
employing establishment has withdrawn a light-duty assignment, which accommodated the
claimant’s work restrictions and a formal LWEC decision has been issued, the decision will
remain in place, unless one of the three accepted reasons for modifying LWEC applies.10 In this
9

The Board has consistently held that the possibility of a future injury does not form a basis for the payment of
compensation under the Federal Employees’ Compensation Act. See Manual Gill, 52 ECAB 282 (2001).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.7(a)(5) (October 2005).

7

case, it was appellant’s burden to establish either that the original rating was in error or that there
has been a material change in the nature and extent of appellant’s injury-related condition such
that he is unable to perform the duties of the approved modified position. The Board finds the
evidence does not demonstrate that the original LWEC decision was in error or that appellant’s
condition has worsened such that he can no longer perform the duties of the approved modified
position. Therefore, appellant has failed to meet his burden of proof to establish that the
November 8, 1996 wage-earning capacity determination should be modified.
CONCLUSION
The Board finds that the medical evidence of record is insufficient to warrant
modification of the Office’s November 8, 1996 wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2008 is affirmed.
Issued: April 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2314
Issued: March 17, 2008

Case Submitted on the Record

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

JURISDICTION
On September 11, 2007 appellant filed a timely appeal from a March 26, 2007 decision
of the Office of Workers’ Compensation Programs, denying his claim for a left foot condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
left foot condition causally related to his federal employment.
FACTUAL HISTORY
On March 12, 2005 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim alleging that he developed swelling in his left foot while standing to case mail. He
attributed his condition to complications following a work-related fractured left foot sustained on
March 9, 1994 when he slipped on ice while delivering mail.

By letter dated September 7, 2005, the Office asked appellant to submit additional
information, including a comprehensive medical report containing a diagnosis and an
explanation as to how the diagnosed condition was causally related to his employment.
Appellant submitted a written statement noting that his left foot became swollen when he stood
to case mail. He attributed his condition to the 1994 incident. Appellant submitted no medical
evidence.
By decision dated October 20, 2005, the Office denied appellant’s claim on the grounds
that he failed to establish that his left foot condition was causally related to his employment.
Appellant requested a hearing that was held on February 8, 2006. He testified that he
developed three lumps in the arch of his left foot a few weeks following his 1994 fractured left
foot. Physicians were not able to diagnose appellant’s condition and he continued to work with
pain. Standing for long periods of time aggravated his pain. Appellant noted that in
September 2005 he also developed a lump in his right foot.
At the hearing, appellant submitted a September 23, 2005 report in which Dr. Keith
Blicht, an attending podiatrist, stated that appellant experienced pain when walking and with
weather changes since he broke his left foot in 1994. Dr. Blicht provided findings on physical
examination and diagnosed a soft tissue mass of the left foot, possibly a plantar fibroma. He
noted that a plantar fibroma could be hereditary or caused by trauma. Dr. Blicht stated:
“Given [appellant’s] past history and the plantar fibroma/soft tissue mass, there is
a possibility that trauma is a possible etiology. Also, given [his] employment as a
postal worker, possibly repetitive microtrauma. Given the fact [that] [appellant]
has to be on his feet during his route delivering mail, microtrauma is possibly an
etiology for the plantar fibroma as well.”
By decision dated April 3, 2006, an Office hearing representative affirmed the
October 20, 2005 decision.
Appellant requested reconsideration. He submitted progress notes dated September 22,
2005 and January 17, 2006 from the KBF Foot and Ankle Surgeons. However, the notes are
largely illegible. The September 2005 notes indicate that appellant was a new patient
experiencing lumps on his left foot. He was previously able to complete his own mail route and
another route but now could complete only his own route. The notes list findings on physical
examination and a diagnosis of possible plantar fibroma. The January 2006 notes provide a
history of a fractured left foot in March 1994 that healed. Appellant subsequently developed
other problems with his left foot.
By decision dated March 26, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that his left foot condition was causally related to
factors of his employment.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
2

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
evidence.1 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s condition and the implicated employment factors. The opinion of the physician 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.2
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof in establishing that
his left foot condition is causally related to factors of his employment.
Dr. Blicht stated that appellant experienced pain when walking and with weather changes
following his accepted left foot fracture sustained in March 1994. He provided findings on
physical examination and diagnosed a soft tissue mass of the left foot, possibly a plantar fibroma.
Dr. Blicht noted generally that plantar fibromas could be hereditary or caused by trauma. He
stated that trauma was a possible cause of appellant’s left foot condition, possibly repetitive
microtrauma related to the walking required in his job. However, Dr. Blicht did not provide a
definite diagnosis, stating that appellant’s left foot condition was “possibly” a plantar fibroma.
He was not able to determine a clear cause of the condition, noting that a plantar fibroma can be
hereditary in origin or caused by trauma. Dr. Blicht’s opinion regarding causal relationship is
speculative in that he indicated that trauma, “possibly” repetitive microtrauma from walking in
his job, was a “possible” cause of his left foot condition. Although noting an alleged history of
the 1994 fracture, he did not explain how the left foot mass was caused or contributed to by this
injury. For these reasons, Dr. Blicht’s opinion on causal relationship is not sufficient to establish
that appellant sustained left foot condition that was caused or aggravated by his employment.
The progress notes dated September 22, 2005 and January 17, 2006 from the KBF Foot
and Ankle Surgeons are not sufficient to establish causal relationship. The handwritten notes are
largely illegible. They list a history of a fractured left foot in March 1994 that healed. There is
no definite diagnosis, only a diagnosis of a “possible” plantar fibroma. There is no medical
rationale explaining the relationship of any left foot mass to appellant’s employment. For these
reasons, these progress notes are not sufficient to establish that appellant’s left foot condition
was caused or aggravated by factors of his employment.

1

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

2

Gary J. Watling, 52 ECAB 278 (2001); Gloria J. McPherson, 51 ECAB 441 (2000).

3

CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that his
left foot condition is causally related to factors of his employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2007 is affirmed.
Issued: March 17, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 08-856
Issued: December 24, 2008

Case Submitted on the Record

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

JURISDICTION
On January 23, 2008 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ October 17, 2007 and January 15, 2008 merit decisions, denying
benefits for an emotional condition. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 45-year-old postmaster, filed a Form CA-2 claim for benefits based on an
emotional condition on February 22, 2007. She stated that her supervisor subjected her to stress
and intimidation which resulted in depression and panic attacks.
Appellant submitted two handwritten notes dated May 2, 2006 in which she indicated that
she needed another person to help her with the April 21, 2006, Segmented Inventory

Accountability [SIA] count deadline. She stated that management assigned a coworker to assist
her for two weeks; she was able to complete her adjustments by April 20, 2006. However,
because appellant was shorthanded most of the time, which required extra time on her part, she
was distracted from the task at hand and missed the SIA count deadline. She stated that,
although she was doing her best, this was a two-person operation being run by only one person.
In a report dated September 27, 2006, Dr. Jack C. Durham, Board-certified in psychiatry,
stated:
“[Appellant] presents today for evaluation of what she feels she may have
experienced as a panic attack this morning. She had a lot of stress that’s been
coming on for about a couple of weeks in dealing with problems at her work.
[Appellant] was talking with her supervisor and she became markedly anxious.
She felt her heart rate increasing to the point that she felt she was having a heart
attack. [Appellant] became quite short of breath. She felt as if her throat was
closing off. [Appellant] has never experienced a panic attack or any amount of
anxiety to this extent in the past. She [ha]s been on Effexor XR for depression for
many years.”
Dr. Durham diagnosed situational panic attack, asthma and a past history of depression,
which was well controlled. He placed her on leave until October 1, 2007.
In a February 14, 2007 report, Dr. Durham stated that appellant was being reevaluated for
anxiety. He related that she had experienced two incidences, the one previously reviewed in
September 2006 and a stressful encounter with her supervisor which occurred that day.
Dr. Durham related that appellant requested a meeting with her supervisor to ascertain the
reasons why he denied her an annual raise. Appellant stated that her supervisor gave her no
reasons for the denial, after which she became very anxious, with her heart pounding and her
pulse rising. Dr. Durham diagnosed situational anxiety and depression and placed appellant on
leave for two weeks. He recommended that appellant go through the chain of command at the
employing establishment to express her grievances.
In a report dated February 15, 2007, Dr. Durham stated:
“[Appellant] has been a patient in our office since April 30, 1979. She has been
treated for depression off and on. Since September 2006, [appellant] has been
seen at our office twice for symptoms suggestive of acute anxiety allegedly
stemming from confrontations with her immediate supervisor. In all her
relationships with her ex-husbands, family members and children I have had no
reason to suspect hat she would not pass through this impasse in a professional
manner. [Appellant’s] depressive symptoms and anxiety attacks appear to be well
controlled with medication and I feel these episodes of anxiety are situational.”

2

Appellant sent an e-mail dated February 13, 2007 to the employing establishment’s
district manager, Nicholas Rinaldi, in which she described what she considered a pattern of
harassment, intimidation, disrespect and abuse on the part of her supervisor, James Dowell. She
stated:
“Today I had a scheduled appointment to meet with James Dowell ... to discuss
my [annual performance evaluation]. I wanted to know why he gave me a rating
of zero in leadership and communication. The meeting should have been an easy
one, but it was not. After telling me that I received a zero because I had three late
SIA audits and didn’t meet my business-connected requirements he said that the
overall performance of my office was also an impact. I explained that I did meet
my business connects and was late with only one audit for which I received a
letter of warning. Mr. Dowell interrupted me every few sentences. He talked to
me in a condescending tone. He repeated the audit dates and would not allow me
to speak. He told me other offices had been late with audits also but he did not
give discipline. I asked why he gave me discipline and not others who were late.
He said he wasn’t going to tell me; he didn’t have to.
“When I asked him to explain how to read the NPA scorecard he refused. He said
he didn’t have to explain it; everyone got the same form I did so he wasn’t going
to waste time explaining it to me. Throughout much of the meeting he refused to
let me speak more than a few words at a time. When I tried to explain that I still
didn’t understand why I made a zero he said he didn’t have to explain why he
gave me the rating he did. He asked why I thought he should have given me a six.
I opened my mouth to speak and he cut me off after three words. I became upset
at his treatment of me and he saw this. He seemed to enjoy the fact that he was
upsetting me. He looked me straight in the eyes and said, ‘Maybe you’re not fit to
run a post office.’ This floored me.
“My breathing became labored. I began to sweat. My heart rate increased. All of
this was visible to Mr. Dowell. At no time did he ask if I was okay. He said he is
my superior and that I better leave before I say something inappropriate. I’m not
sure what he meant by that, but I got up to leave. As I was leaving I tried to say
something else. All he did say was, ‘Have a nice day’ several times over and over
each time a word came out of my mouth; so I left; shaking and distraught.”
Appellant stated that she merely wanted to have Mr. Dowell substantiate why she
received such a low rating. However, she stated that he behaved in a disrespectful, offensive,
hostile manner toward her, which caused her to experience a panic attack in her car after leaving
his office. Appellant stated that this was not the first time he had behaved in such a manner. She
alleged that Mr. Dowell routinely abuses his authority and that his management style consists of
intimidation, bullying and threats. Appellant asserted that she is incapable of working under
such conditions, which resulted in stress, panic attacks, depression and a feeling of helplessness.
The Office controverted appellant’s claim and submitted a March 30, 2007 statement from
Mr. Dowell, the employing establishment’s operations manager, who noted that appellant had
been diagnosed with situational stress, depression and panic attacks. Mr. Dowell stated that

3

appellant had brought stress upon herself by failing to fulfill the duties of postmaster at the
employing establishment. He advised that as postmaster appellant was responsible for the
deadlines, goals and financial reports of her facility; however, management had formally
disciplined her on five occasions between May 11, 2004 and February 8, 2007 based on her
substandard performance record.1 Mr. Dowell stated that appellant was disciplined on May 2,
2006 for failure to perform her duties, based on her untimely submission of an SIA audit for
April 2006. He advised that this formal reprimand was implemented as a constructive measure,
intended to impress upon appellant the importance of following procedure and meeting deadlines;
she, however, continued to submit reports in an untimely fashion in regard to three other audits in
the 2006 fiscal year.2
Mr. Dowell denied appellant’s allegations that he treated her with disrespect. He stated that
his secretary had witnessed and documented telephone conversations between himself and
appellant as well as their meeting regarding her year-end performance evaluation. These
documented conversations were included in the case file. Mr. Dowell rejected appellant’s
assertion that her duties were overwhelming and that she needed an additional employee to assist
her. He stated that her coworkers had informed him that she is frequently absent from the worksite
and provided a list of nine instances between September 26, 2006 and January 29, 2007 in which
she had requested leave without providing a reason. In addition, Mr. Dowell listed three other
occasions in which appellant left work in the morning or early afternoon for doctor’s
appointments.3 He asserted that she had amassed an excessive amount of leave throughout her
career to the extent where she was abusing her leave privileges.
By letter dated May 10, 2007, the Office advised appellant that she needed to submit
additional information in support of her claim. It asked her to describe in detail the employmentrelated conditions or incidents, which she believed contributed to her emotional condition and to
provide specific descriptions of all practices, incidents, etc., which she believed affected her
condition.
In a May 28, 2007 letter to the Office, appellant stated:
“Since 2005 I have been required by my immediate manager, James Dowell, to
work 50-60 hours weekly, my scheduled days off and several holidays. I have
asked for and been denied assistance in the way of a subordinate supervisor and
1

These reprimands included: (1) a May 11, 2004 predisciplinary interview conducted due to appellant’s failure
to follow instructions, in which she admitted and apologized for not researching the proper procedures to ensure she
followed the guidelines; (2) a letter of warning issued on May 26, 2004 for failure to follow instructions; (3) a
May 2, 2006 predisciplinary interview conducted due to appellant’s untimely submission of SIA audit for
April 2006; (4) a predisciplinary interview conducted on February 6, 2007 due to appellant’s failure to collect
information and (5) a February 8, 2007 letter of warning in lieu of seven-day suspension.
2

Mr. Dowell submitted copies of a February 28, 2007 employing establishment e-mail addressed to him which
indicated that appellant’s employing establishment had been late on approximately 57 percent of its audits for fiscal
year 2006.
3

Mr. Dowell submitted copies of three e-mails from appellant, dated October 13, November 2 and December 11,
2006, in which she stated that she was leaving work early to attend medical appointments.

4

replacements for vacant clerk and carrier positions from Mr. Dowell as well as
District Manager Nicholas Rinaldi and Senior Post Office Manager James Antil.
“On September 27, 2006 I suffered a panic attack while on the telephone with
Mr. Dowell. During the call Mr. Dowell berated my managerial abilities …
accused me of not being in my office (I am in my office more than ten hours a day
on most days), laughed at me when I became upset and afterwards told me he had
me on his speaker phone and that his secretary was taking notes. As a rule, when
a work performance discussion is to be held, the employee, me, would be notified
that it was a work performance discussion and would be allowed a representative
to be present for their protection. When I hung up from that phone call I
immediately visited my doctor who advised me that I had a panic attack due to
situational job related stress. I forwarded my medical documentation to
Mr. Dowell and took two days of sick leave. I returned to work, my mental and
physical health uncertain.
“The harassing behavior continued by telephone and teleconference and by
auditors being sent to my office no less than six times in a period of less than four
months in an effort to find fault with my performance. Consequently, I was
denied my yearly merit evaluation for fiscal year 2006 under the pretext that I was
late with three SIA audits; I was late on only one audit; as were other postmasters.
When I visited Mr. Dowell’s office on February 13, 2007 to discuss my rating, he
again berated my work performance. When I tried to speak I was cut off. He
refused to explain his evaluation of me, continually interrupted me and ultimately
threw me out of his office. But not before telling me that I wasn’t ‘fit to run a
post office.’ I experienced another panic attack in his parking lot after the
meeting.
“After visiting my doctor again I was advised to stay out of work. I subsequently
filed a postal form CA-2; report of on the job illness or injury, due to my doctor’s
diagnosis of situational stress and anxiety disorder, panic attacks and clinical
depression. I submitted the CA-2 to Mr. Dowell’s secretary, as he refused to see
me. After two weeks Mr. Dowell had still failed to submit the form to the injury
compensation office. The district EEO investigator finally got him to sign off on
the form. After nearly three months I received written notification from the
Office that my claim had been challenged and they required further
documentation.”
Appellant stated that completing the workers’ compensation and Equal Employment
Opportunity (EEO) claims caused her additional stress and anxiety, as did the fact that she
continued to receive telephone calls at home from customers and employees despite her medical
absence. She also stated that she had been forced to use all of her annual and sick leave to cover
her absence because her claim for disability to cover her period of absence was contested.
Lastly, appellant asserted that the fact that it took nearly three months for the employing
establishment to respond to her Form CA-2 claim was a deliberate, punitive action on the part of
Mr. Dowell and other administrative managers to compound her stress and anxiety. She asserted
that she also feels stress and anxiety due to the uncertainty as to what will happen next with her

5

claim and her career. Appellant noted that she had filed more than one claim with the EEO
Commission due to Mr. Dowell’s hostile behavior. All of this had made her forgetful, nervous
and confused and has caused her to experience anxiety and panic attacks.
In a June 6, 2007 report, Dr. B. Rhett Myers, Board-certified in psychiatry, advised that he
had seen appellant on May 3 and June 4, 2007. He noted that she had shown improvement in her
psychiatric condition and had not experienced a panic attack during that period. Dr. Myers noted
that appellant continued to complain of moderate symptoms of depression and impaired stress
tolerance. He stated:
“At this time, it is my psychiatric opinion that [appellant] is not quite ready to
return back into the stressful work environment which led to her psychiatric
problems in the first place. I have talked with her about trying to return to work
within the next two to four weeks and I feel that she is sincere and trying to
accomplish this. [Appellant] is understandably concerned that if she returns to full
duty she will be quickly overwhelmed by excessive work demands. It might be
advantageous for her to return to work on a half time basis for the first couple of
weeks.”
In a statement received by the Office on June 6, 2007, Debra Mickey, a clerk who worked
under appellant, stated:
“On Wednesday, September 27, 2006, I was working on the window when I heard
[appellant] on the [tele]phone very upset. By the time I could finish with my
customer and check on [appellant] to shut the door I heard her say to [Mr. Dowell]
‘are you laughing at me’ at least twice. I also heard her say that she did n[o]t know
anybody else was there listening. [Appellant] thought that it was a one on one
conversation and he should [have] told her that someone else was there.”
In an August 17, 2007 statement, appellant rebutted Mr. Dowell’s statements regarding
her claim. She asserted that Mr. Dowell erroneously stated that management had investigated
her claim; objected to Mr. Dowell’s characterizations of predisciplinary interviews, as
disciplinary actions (which she stated that were not supposed to be used against employees); and
alleged that Mr. Dowell’s accounts of her disciplinary history were either erroneous or fabricated.
In addition, appellant asserted that only one of the SIA audits, for which she was responsible was
late, which occurred due to a problem which was not her fault. She stated that the problem
pertained to transferring redeemed stock for destruction when new Office procedures were
implemented. Appellant indicated that Mr. Dowell failed to mention that the district financial
officers instructed her to un-post the audits and redo them; she asserted that she had originally
completed these audits in a timely fashion, but the district financial officers did not yield the
desired results on their audits and ordered her to recount and repost the other audits, causing them
to be late.
Appellant further stated that Mr. Dowell failed to provide documentation showing that her
coworkers stated that she was frequently absent from the worksite; advised that she did not commit
abuse with regard to her use of annual and sick leave, which she only used properly to deal with
her various illnesses and maladies; alleged that Mr. Dowell arbitrarily her request for advanced

6

sick leave so that she could undergo back surgery; and reiterated her allegations that she had been
pushed over the edge by Mr. Dowell’s continued harassment and unreasonable demands to work
more and more hours with fewer resources and personnel.4
By decision dated October 17, 2007, the Office denied appellant’s claim on the basis that
she failed to establish any compensable factor of employment and thus fact of injury was not
established.
By letter dated October 30, 2007, appellant requested reconsideration. She asserted that
Mr. Dowell had included erroneous information in her merit file to which she had been denied
access, which hindered her efforts to prove her EEO and OWCP cases. Appellant further stated
that she had been personally informed by an employing establishment official that a subordinate
supervisor position had been approved for (her former worksite). She contended that this hiring
of a new supervisor, while she was currently out of work, supported her allegation that she had
been forced by Mr. Dowell to do the work of two people and denied help when she requested it
in good faith.
By decision dated January 15, 2008, the Office denied modification of the October 17,
2007 decision.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.5 There must be
evidence that, implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.6
The first issue to be addressed is whether appellant has established factors of employment
that contributed to her alleged emotional condition or disability. Where the disability results
from an emotional reaction to regular or specially assigned work duties or a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.7 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position or to secure a promotion. Disabling
4

Appellant also asserted that the notes from Mr. Dowell’s secretary pertaining to the February 13, 2007 meeting
are not credible, because Mr. Dowell selectively edited what really happened at the meeting. She alleged that
Mr. Dowell intimidated his secretary into writing what he wanted to show in her notes. Appellant stated that
Mr. Dowell was rude, abusive, contemptuous, dismissive and unresponsive to her questions regarding her work
situations at this meeting, which his secretary’s notes failed to show.
5

See Debbie J. Hobbs, 43 ECAB 135 (1991).

6

See Ruth C. Borden, 43 ECAB 146 (1991).

7

Lillian Cutler, 28 ECAB 125 (1976).

7

conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of the Act.8
ANALYSIS
Appellant alleged that she sustained stress in the performance of her duties as a
supervisor due to the responsibilities assigned to her by Mr. Dowell. The Board has held that
emotional reactions to situations in which an employee is trying to meet her position
requirements are compensable.9 However, appellant has not submitted sufficient evidence to
support her allegations that Mr. Dowell imposed an unusually heavy workload, forced her to
work overtime, issued unreasonable deadlines or subjected her to unreasonable demands in
setting performance guidelines for her. Nor has she provided support for her allegations that
management erred by failing to provide her with an additional supervisor to help her complete
her assignments. Appellant has actually acknowledged that when she asked for additional help
to meet an April 21, 2006 inventory deadline, she was assigned a helper who assisted in
completing the inventory by April 20, 2006. While she alleged that she was “distracted” during
this time period and therefore missed an audit deadline, she has not submitted the necessary
evidence to establish that her “distraction” was related to the performance of her job duties.
Assignment of a work schedule is an administrative function and not a work factor and is not
compensable absent a showing of error or abuse.
As part of the managerial function, a supervisor must assign work. Appellant did not
submit any evidence to substantiate that any of her work assignments were in error or were
abusive.
The Board finds that appellant has failed to submit sufficient evidence to establish her
allegations that her supervisor engaged in a pattern of harassment, intimidation or discrimination.
Appellant alleged that Mr. Dowell was hostile and uncooperative and spoke to her in a
condescending, offensive manner at the September 27, 2006 meeting,10 but did not provide
sufficient evidence to establish that she was harassed or treated in a discriminatory manner.11
Mere perceptions of harassment or discrimination are not compensable; a claimant must establish
a basis in fact for the claim by supporting her allegations with probative and reliable evidence.12

8

Id.

9

See Lillian Cutler, supra note 7.

10

The Board finds that the June 6, 2007 statement from appellant’s coworker, Ms. Mickey, wherein she described
a telephone conversation she overheard between appellant and “James” on September 27, 2006 (in which appellant
sounded “very upset” and stated “are you laughing at me”) does not constitute sufficient evidence of harassment on
the part of Mr. Dowell and is not compensable.
11

See Joel Parker, Sr., 43 ECAB 220 (1991). (The Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
12

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

8

Mr. Dowell denied appellant’s allegations that she was unfairly singled out or treated in a
discriminatory manner. Appellant alleged that he gave her unreasonable restrictions and
expectations that he did not impose on other supervisors, but failed to submit documentation to
prove these allegations. Mr. Dowell stated that as part of his managerial functions he had
counseled appellant about her performance because she had failed to meet deadlines, goals and
submit timely financial reports. He advised that management had disciplined her on several
occasions between May 11, 2004 and February 8, 2007 due to her substandard performance.
Mr. Dowell noted that he had formally reprimanded appellant during the September 27, 2006
meeting; however, he stated that this was a constructive measure implemented to apprise appellant
of the importance of following procedure and meeting deadlines. Disciplinary matters consisting
of counseling sessions, discussions or letters of warning for conduct pertain to actions taken in an
administrative capacity and are not compensable as factors of employment.13 Appellant alleged
that her supervisor made statements and engaged in actions, such as predisciplinary interviews,
which she believed constituted harassment and discrimination,14 but she provided no
corroborating evidence or witness statements to establish that the statements actually were made
or that the actions actually occurred.
The Office reviewed all of appellant’s allegations of harassment, abuse and mistreatment
and found that they were not substantiated or corroborated. To that end, the Board finds that the
Office properly found that the episodes of harassment cited by appellant did not factually occur
as alleged by appellant, as she failed to provide any corroborating evidence for her allegations.
As such, appellant’s allegations constitute mere perceptions or generally stated assertions of
dissatisfaction with a certain superior at work which do not support her claim for an emotional
disability.15 For this reason, the Office properly determined that these incidents constituted mere
perceptions of appellant and were not factually established. Appellant has not submitted
evidence sufficient to establish that Mr. Dowell engaged in a pattern of harassment toward her or
created a hostile workplace environment.
The Board finds the evidence of record does not establish that the administrative and
personnel actions taken by management in this case were in error and are therefore not
considered factors of employment. An employee’s emotional reaction to an administrative or
personnel matter is not covered under the Act, unless there is evidence that the employing
establishment acted unreasonably.16 Appellant has not presented sufficient evidence that the
employing establishment acted unreasonably or committed error with regard to the incidents of

13

Barbara E. Hamm, 45 ECAB 843 (1994); Barbara J. Nicholson, 45 ECAB 803 (1994).

14

The Board rejects appellant’s assertion that Mr. Dowell’s alleged statement, “maybe you [a]re not fit to run a
employing establishment,” was compensable. Although the Board has recognized the compensability of verbal
abuse in certain circumstances, this does not imply that every statement uttered in the workplace will give rise to
coverage under the Act. Harriet J. Landry, 47 ECAB 543, 547 (1996). Appellant has not shown how such an
isolated comment would rise to the level of verbal abuse or otherwise fall within the coverage of the Act. See Alfred
Arts, 45 ECAB 530, 543-44 (1994).
15

See Debbie J. Hobbs, supra note 5.

16

See Alfred Arts, supra note 14.

9

alleged unreasonable actions involving personnel matters on the part of the employing
establishment.
Regarding appellant’s allegation that she developed stress due to the uncertainty of her
job duties and her insecurity about maintaining her position, the Board has previously held that a
claimant’s job insecurity is not a compensable factor of employment under the Act.17
Accordingly, she has presented no evidence that the employing establishment acted unreasonably
or committed error with regard to these incidents of administrative managerial functions. A
reaction to such factors did not constitute an injury arising within the performance of duty; such
personnel matters were not compensable factors of employment in the absence of agency error or
abuse.
The Board notes that matters pertaining to use of leave are generally not covered under
the Act as they pertain to administrative actions of the employing establishment and not to the
regular or specially assigned duties the employee was hired to perform.18 However, error or
abuse by the employing establishment in an administrative or personnel matter or evidence that
the employing establishment acted unreasonably in the administrative or personnel matter, may
afford coverage.19 Mr. Dowell indicated that he acted in his administrative capacity in rejecting
appellant’s leave requests because her attendance was unsatisfactory, because she took
unauthorized breaks and because she had accumulated an excessive leave balance to the extent
where he felt she was abusing her leave privileges. He rejected appellant’s allegation that he
harassed appellant by arbitrarily denying her requests for leave. As appellant has failed to show
that these actions demonstrated error or abuse on the part of management, they are not
compensable.
Appellant has failed to establish error or abuse with regard to her allegation that the
employing establishment acted improperly in issuing her letters of warning and conducting
predisciplinary interviews. She has not submitted sufficient evidence to support her allegations
that the employing establishment ignored her requests for assistance, denied access to erroneous
information in her merit file, which had been improperly included in the file or hindered her
efforts to prove her EEO and the Office cases. Appellant’s complaints that she was treated
unfairly by management were rebutted by Mr. Dowell, who provided documentation that
management had to formally discipline appellant five times between May 2004 and February 2007
based on her failure to perform her duties in an adequate fashion. Mr. Dowell stated that although
appellant had been admonished for her untimely submission of the April 2006 SIA audit, she
continued to submit reports in an untimely fashion in regard to three other audits in the 2006 fiscal
year. His assertions pertaining to appellant’s chronic inability to meet auditing deadlines were
supported by an internal e-mail from management, which indicated that appellant’s employing
establishment had been late on approximately 57 percent of its audits for fiscal year 2006. Thus,
these actions on the part of management did not constitute a factor of employment.

17

See Artice Dotson, 42 ECAB 754, 758 (1990); Allen C. Godfrey, 37 ECAB 334, 337-38 (1986).

18

Elizabeth Pinero, 46 ECAB 123 (1994).

19

Margreate Lublin, 44 ECAB 945 (1993).

10

Appellant also failed to substantiate her allegations that Mr. Dowell erroneously stated
that management had investigated her claim, improperly characterized predisciplinary interviews
as disciplinary actions and provided fallacious accounts of her disciplinary history. Regarding her
allegation that the employing establishment intentionally delayed processing her compensation
claim, the Board notes that the development of any condition related to such matters would not
arise in the performance of duty as the processing of compensation claims bears no relation to
appellant’s day-to-day or specially assigned duties.20 As appellant has failed to show that these
actions demonstrated error or abuse on the part of management, they are not compensable.
The Board has held that investigations, which are an administrative function of the
employing establishment, that do not involve an employee’s regularly or specially assigned
employment duties are not considered to be employment factors.21 However, the Board has also
found that an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.
Although appellant has made allegations that the employing establishment erred and acted
abusively in conducting its investigative interviews, she has not provided sufficient evidence to
support such a claim. A review of the evidence indicates that she has not shown that the
employing establishment’s actions in connection with its investigation of her were unreasonable.
Appellant alleged that her supervisor made abusive statements during the course of the
investigation of her, but she provided no corroborating evidence, such as witness statements, to
establish that the statements were actually made.22 Thus, she has not established a compensable
employment factor under the Act in this respect.
The Board finds that appellant has not established a compensable work factor. For this
reason, the medical evidence will not be considered.23 The Board will affirm the October 17,
2007 and January 15, 2008 decisions, denying compensation for an alleged emotional condition.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

20

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

21

Jimmy B. Copeland, 43 ECAB 339, 345 (1991).

22

See Larry J. Thomas, 44 ECAB 291, 300 (1992).

23

See Margaret S. Krzycki, supra note 12.

11

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2008 and October 17, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Abscon, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-107
Issued: September 30, 2009

Case Submitted on the Record

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

JURISDICTION
On October 15, 2008 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decision dated June 24, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than two percent impairment of his right lower
extremity, for which he has received a schedule award.
FACTUAL HISTORY
On February 27, 2002 appellant, then a 42-year-old letter carrier, filed an occupational
disease alleging that he developed pain in the lower back due to repetitive twisting and bending
in the performance of duty. The Office accepted his claim for exacerbation of herniated lumbar
disc on April 9, 2002. Appellant returned to full duty on May 9, 2002.
Appellant requested a schedule award on July 9, 2003. In support of his request, he
provided a report dated May 15, 2003 from Dr. David Weiss, an osteopath, noting sensory

deficits at L4, L5 and S1 on the right resulting in 12 percent impairment to the right lower
extremity. Dr. Weiss also found that appellant had an additional 3 percent impairment due to
pain for total right lower extremity impairment of 15 percent.
The Office medical adviser reviewed this report on December 18, 2003 and
recommended a second opinion evaluation. He stated that a herniated disc at L5-S1 could not
influence the L4 and L5 nerve roots. In a letter dated January 26, 2004, the Office stated that
there was a conflict of medical opinion evidence between Dr. Weiss and the Office medical
adviser and referred appellant to Dr. Robert Bachman, a Board-certified orthopedic surgeon, to
resolve the conflict.
Dr. Bachman completed a report on February 11, 2004 and described appellant’s history
of injury and noted no objective findings on physical examination. On April 1, 2004 the Office
medical adviser reviewed Dr. Bachman’s report and found no permanent impairment of the right
lower extremity.
By decision dated May 7, 2004, the Office denied appellant’s claim for a schedule award.
Appellant, through his attorney, requested an oral hearing on May 19, 2004. The hearing
representative set aside the Office’s May 7, 2004 decision on May 25, 2005 and found that the
Office failed to properly select Dr. Bachman from the rotational system and instead should have
referred appellant to his partner Dr. Stephen Horowitz, a Board-certified orthopedic surgeon.
The hearing representative remanded the case for a new impartial medical evaluation.
The Office’s Physician Directory System (PDS) provided that the impartial medical
examination should be with Dr. Walter Poprycz, a Board-certified orthopedic surgeon. The
Office referred appellant for an impartial medical examination with Dr. Howard Zeidman, a
Board-certified orthopedic surgeon, who is an associate with Dr. Poprycz, completed a report on
July 21, 2005 and found that appellant had five percent impairment of the right lower extremity
due to a class three impairment of the S1 nerve root. It requested a supplemental report on
August 2, 2005 addressing appellant’s diagnosed condition.
Dr. Zeidman diagnosed
degenerative disc disease with radiculitis, which was accelerated by the accepted employment
injury. By decision dated October 5, 2005, the Office granted appellant a schedule award for
five percent impairment of his right lower extremity. Appellant, through his attorney, requested
an oral hearing on October 26, 2005. In an April 3, 2006 decision, the hearing representative set
aside the Office’s October 5, 2005 decision finding that Dr. Zeidman was not properly selected
as an impartial medical examiner.
The Office then attempted to select an appropriate impartial medical examiner.
Dr. Francis Kennard, a Board-certified orthopedic surgeon, was bypassed as he was a broker.
Dr. Ronald L. Gerson, a Board-certified orthopedic surgeon, was selected to serve as the
impartial medical examiner. The Office informed appellant on June 9, 2006, that Dr. Gerson
would perform the impartial medical examination. The medical scheduler then found that
Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon, was the next appropriate
physician. In a letter dated June 16, 2006, the Office stated that Dr. Friedenthal should serve as
the impartial medical examiner.

2

In a report dated June 28, 2006, Dr. Friedenthal noted appellant’s history of injury and
findings on physical examination. He reported appellant’s complaints of intermittent
paresthesias and incomplete decreased sensation in an S1 distribution. Dr. Friedenthal noted that
this was a purely subjective finding. He concluded that appellant had a Grade 3 sensory
impairment of the S1 nerve root of 40 percent or 2 percent impairment of the right lower
extremity. By decision dated July 28, 2006, the Office found that appellant had no more than
five percent impairment of his right lower extremity, for which he had received a schedule
award. Appellant, through his attorney, requested an oral hearing on August 3, 2006. By
decision dated March 22, 2007, the hearing representative set aside the Office’s July 28, 2006
decision on the grounds that Dr. Friedenthal was not properly selected by the physician’s
directory system to serve as the impartial medical examiner. The hearing representative found
that Dr. Gerson was randomly selected by the system to serve as the impartial medical examiner,
but that the Office then selected his associate Dr. Friedenthal to perform the examination. The
hearing representative remanded the case for an appropriate impartial medical examination.
The physician’s directory system randomly selected Dr. Bruce Monaghan, a Boardcertified orthopedic surgeon, who did not perform examinations for the Office. Dr. Christopher
Ruhnke, a Board-certified orthopedic surgeon, was selected and the Office was unable to reach
his secretary and so bypassed him. The system selected Dr. Gregory Maslow, a Board-certified
orthopedic surgeon, who was on vacation and therefore bypassed by the Office. Dr. Mark
Schwartz, a Board-certified orthopedic surgeon was also selected, but did not perform
examinations for the Office. Dr. Chael Sidor, a Board-certified orthopedic surgeon, was selected
by the system, but bypassed by the Office as he was not a back specialist. The system selected
Dr. Mark Sobel, a Board-certified orthopedic surgeon, but the Office was unable to speak to his
secretary to schedule an appointment. Dr. Thomas Stackhouse, a Board-certified orthopedic
surgeon, was unwilling to review appellant’s record due to the size. The Office was unable to
reach Dr. Eric Strauss, a Board-certified orthopedic surgeon and left a message. Dr. Merrick
Wetzler, a Board-certified orthopedic surgeon, was selected by the system, but bypassed by the
Office as his partner had previously examined appellant. Dr. Zohar Stark, a Board-certified
orthopedic surgeon, was scheduled to perform the examination on May 2, 2007.
In a report dated May 15, 2007, Dr. Stark stated that appellant developed pain in his right
thigh and right buttock on January 14, 2002. He noted that appellant denied any other trauma.
Dr. Stark reviewed appellant’s medical records specifically noting the February 13, 2002 lumbar
spine study, which revealed degenerative changes L4 through S1 with a herniation at L5-S1 and
he performed a physical examination and found that he could walk with a normal gait and that he
exhibited nondermatomal reduced sensation in the right lower leg and foot. He found no muscle
weakness. Dr. Stark stated that appellant’s deep tendon reflexes were present and equal
bilaterally. He noted that appellant’s reduced sensation most closely followed the L5
dermatome. Dr. Stark diagnosed discogenic disc disease of the lumbar spine and opined that
appellant’s employment duties did aggravate the preexisting condition of degenerative disc
disease. He evaluated appellant’s impairment according to the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides) and noted that the
maximum sensory deficit of the L5 nerve root was 5 percent and multiplied the 5 percent by the
40 percent to reach 2 percent of permanent impairment relating to his right lower extremity as a
result of the accepted condition.

3

By decision dated July 19, 2007, the Office found that appellant had no more than two
percent impairment of the right lower extremity, for which he had received a schedule award.
On appeal, appellant’s attorney objected to the selection of Dr. Stark by the Office and
further alleged that his report was not sufficiently well rationalized to represent the weight of the
medical opinion evidence. He alleged that Dr. Stark did not consider appellant’s preexisting
discogenic disease and the impact of this condition on his right lower extremity. Appellant’s
attorney also argued that the reports of the other physicians should have been excluded from the
record.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back, no
claimant is entitled to such an award.3 However, as the schedule award provisions of the Act
include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originated in the spine.4
The Act provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.5 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician of an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.6 A physician selected by the Office to serve as an impartial
medical specialist should be wholly free to make a completely independent evaluation and
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999).

3

George E. Williams, 44 ECAB 530, 533 (1993).

4

Id.

5

5 U.S.C. §§ 8101-8193, 8123.

6

20 C.F.R. § 10.321.

4

judgment. To achieve this, the Office has developed specific procedures for the selection of
impartial medical specialists designed to provide safeguards against any possible appearance that
the selected physician’s opinion is biased or prejudiced. The procedures contemplate that
impartial medical specialists will be selected from Board-certified specialists in the appropriate
geographical area on a strict rotating basis in order to negate any appearance that preferential
treatment exists between a particular physician and the Office.7 The Federal (FECA) Procedure
Manual (the procedure manual) provides that the selection of referee physicians (impartial
medical specialists) is made through a strict rotational system using appropriate medical
directories. The procedure manual provides that the PDS should be used for this purpose
wherever possible.8 The PDS is a set of stand-alone software programs designed to support the
scheduling of second opinion and referee examinations.9 The PDS database of physicians is
obtained from the American Board of Medical Specialties (ABMS), which contains the names of
physicians who are Board-certified in certain specialties.
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.10
ANALYSIS
In this case, appellant submitted evidence of a permanent impairment to his right lower
extremity as a result of his accepted back injury. Dr. Weiss opined that appellant had sensory
deficits at L4, L5 and S1 on the right resulting in 12 percent impairment to the right lower
extremity. He also found that appellant had an additional 3 percent impairment due to pain for
total right lower extremity impairment of 15 percent. The Office referred the report of
Dr. Weiss, an osteopath, to the Office medical adviser for review. The Office medical adviser
questioned the sensory deficits at L4 and L5 and recommended a second opinion evaluation.
The Office improperly determined that this suggestion constituted a conflict of medical opinion
evidence and referred appellant to Dr. Bachman, a Board-certified orthopedic surgeon, to resolve
this conflict. The Board finds that as there was no conflict at the time of the referral to
Dr. Bachman, his report constitutes a second opinion evaluation. Dr. Bachman disagreed with
Dr. Weiss’ findings regarding the nature and extent of appellant’s right lower extremity
impairment. He found that appellant had no objective findings and therefore no permanent
impairment to his right lower extremity as a result of his accepted back injury. Due to the
disagreement between Drs. Bachman and Weiss regarding the nature and extent of appellant’s
right lower extremity impairment, a conflict of medical opinion arose.
The Office then referred appellant to a series of physicians to resolve the existing
conflict. The Board notes that the respective hearing representatives appropriately found that the
7

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).

9

Federal (FECA) Procedure Manual, supra note 8 Chapter 3.500.7 (September 1995, May 2003).

10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

Office had not followed its established procedures in selecting Drs. Zeidman and Friedenthal to
serve as impartial medical examiners as these physicians were not selected through the PDS.
The Board further finds that the Office followed its procedures and provided the evidence
necessary to verify that it selected Dr. Stark in a fair and unbiased manner. The record
demonstrates that the Office adhered to the selection procedures and that reasons were provided
for each physician who was bypassed. Appellant has not provided any evidence to support that
the Office failed to comply with its rotational procedures. He has not provided any probative
evidence to demonstrate bias on the part of Dr. Stark. The Board has held that an impartial
medical specialist properly selected under the Office’s rotational procedures will be presumed
unbiased and the party seeking disqualification bears the substantial burden of proving
otherwise. Mere allegations are insufficient to establish bias.11 Accordingly, appellant has not
presented any evidence establishing that Dr. Stark was improperly selected as the impartial
medical examiner or that he was biased.
On May 15, 2007 Dr. Stark noted appellant’s history of injury, his medical history and
performed a physical examination. He found that appellant exhibited a nondermatomal-reduced
sensation in the right lower leg and foot, but no muscle weakness. Dr. Stark also stated that
appellant’s deep tendon reflexes were present and equal bilaterally and opined that his reduced
sensation most closely followed the L5 dermatome. He evaluated appellant’s impairment
according to the A.M.A., Guides noting that the maximum sensory deficit of the L5 nerve root
was five percent.12 Dr. Stark then multiplied the 5 percent by the 40 percent to reach 2 percent
permanent impairment relating to his right lower extremity as a result of the accepted
condition.13
The Board finds that Dr. Stark’s report is based on a proper history of injury and is
appropriately detailed to constitute the special weight of the medical opinion evidence. He
provided his findings on physical examination and properly applied the appropriate sections of
the A.M.A., Guides in reaching his impairment rating. This report resolves the existing conflict
of medical opinion evidence and establishes that appellant has no more than two percent
impairment of his right lower extremity, for which he has received a schedule award. The Board
further notes that contrary to appellant’s argument on appeal, Dr. Stark based his impairment
rating on his detailed findings on physical examination which described all impairments of the
right lower extremity, including appellant’s preexisting degenerative disc disease.14
In regard to the final argument of appellant’s attorney, the Board notes that the Office is
only required to exclude medical reports in four cases: (1) where the impartial physician is
regularly involved in fitness-for-duty examinations for the employing establishment; (2) where a
11

L.W., 59 ECAB ___ (Docket No. 07-1346, issued April 23, 2008).

12

A.M.A., Guides, 424, Table 15-18.

13

Id. at 424, Table 15-15.

14

It is well established that preexisting impairments to the scheduled member are to be included when
determining entitlement to a schedule award. See Carol A. Smart, 57 ECAB 340 (2006); Raymond E. Gwynn, 35
ECAB 247 (1983).

6

second impartial physician’s report is requested before clarification of an initial report; (3) where
the Office has had telephone contact with the physician; and (4) where leading questions have
been posed to the physician.15 Therefore, the Office was not obligated to exclude any medical
reports in this case.
CONCLUSION
The Board finds that appellant has no more than two percent impairment of his right
lower extremity, for which he has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 24, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 30, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

Nancy Keenan, 56 ECAB 687 (2005); Barbara J. Warren, 51 ECAB 413 (2000).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Gatlinburg, TN,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1638
Issued: April 16, 2014

Case Submitted on the Record

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

JURISDICTION
On July 1, 2013 appellant, through his representative, filed a timely appeal of a
May 17, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) adjusting his
compensation based on a loss of wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation based on its
finding that his actual earnings as a modified seasonal laborer fairly and reasonably represented
his wage-earning capacity.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s representative argued that the loss of wage-earning capacity
determination failed to consider appellant’s loss of salary due to his inability to find nonfederal
work outside of his seasonal appointment.
FACTUAL HISTORY
On August 17, 2010 appellant, then a 23-year-old seasonal laborer, broke his pelvis,
injured the middle part of his body and sustained a small laceration above the right eye when a
tree fell on him while walking along a trail. His salary grade was WG03. OWCP accepted the
claim for open scalp wound without complications, right fracture of the pelvis and closed
bilateral fracture of the sacrum and coccyx and esophageal reflux. It placed appellant on the
periodic rolls in receipt of temporary total disability.
On December 14, 2011 Dr. Scott T. Smith, an attending Board-certified orthopedic
surgeon, advised that appellant was capable of working with restrictions. The restrictions
included no lifting more than 50 pounds for less than two hours; no steep grade hiking; and up to
two hours of stooping, bending and squatting.
On March 26, 2012 the employing establishment offered appellant the position of
modified laborer which included job duties that fell within his restrictions. The period of
employment was from May 20 to November 3, 2012.
Appellant accepted the job offer and returned to work on May 21, 2012.
On September 19, 2012 OWCP proposed to reduce appellant’s wage-loss compensation
to zero based on his return to work in a modified labor position earning $563.09 a week working
40 hours a week. It noted that at the time of his injury he was a seasonal employee. The
employing establishment was obliged to offer appellant at least a seasonal job and his five-month
appointment met that obligation. OWCP further noted that appellant had demonstrated his
ability to perform the assigned duties for at least two months and, therefore, the modified laborer
position was considered suitable to the limitations of his partial disability.
By decision dated October 31, 2012, OWCP finalized the proposal to reduce appellant’s
wage-loss compensation. It found that his earnings as a modified seasonal laborer fairly and
reasonably represented his wage-earning capacity. Because appellant’s actual weekly earnings
($563.09) met or exceeded the current wages of his date-of-injury position, OWCP determined
that appellant had no loss of wage-earning capacity.2
Appellant requested a hearing before an OWCP hearing representative, which was held
on February 19, 2013.
In a March 7, 2013 statement, appellant’s representative contended that the loss of wageearning capacity decision was erroneous because the work restrictions caused by his accepted
employment injury prevented gainful work outside of the employing establishment.

2

Appellant’s weekly pay at the time of his injury was $563.09.

2

In May 17, 2013 decision, OWCP’s hearing representative affirmed the October 31, 2012
decision.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.3 An
employee’s actual earnings generally best reflect his or her wage-earning capacity.4 Absent
evidence that actual earnings do not fairly and reasonably represent the employee’s wage-earning
capacity, such earnings must be accepted as representative of the individual’s wage-earning
capacity.5 Compensation payments are based on the wage-earning capacity determination and
OWCP’s finding remains undisturbed until properly modified.6
Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour
of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part-time
(unless the claimant was a part-time worker at the time of injury) or sporadic in nature;
(3) whether the job is seasonal in an area where year-round employment is available; and
(4) whether the job is temporary where the claimant’s previous job was permanent.7
Additionally, a makeshift or odd-lot position designed to meet an injured employee’s particular
needs will not be considered representative of one’s wage-earning capacity.8
Assuming the position is both vocationally and medically suitable and conforms to the
above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after he has successfully performed the required duties for at least 60 days.9
ANALYSIS
OWCP accepted that appellant sustained an open scalp wound without complications,
right fracture of the pelvis and closed bilateral fracture of the sacrum and coccyx and esophageal
reflux due to an August 17, 2010 employment injury.
3

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see W.B., Docket No. 09-934 (issued January 11, 2010);
Alfred R. Hafer, 46 ECAB 553 (1995).
4

H.N., Docket No. 09-1628 (issued August 19, 2010); J.C., 58 ECAB 700 (2007); Connie L. Potratz-Watson, 56
ECAB 316 (2005); Hayden C. Ross, 55 ECAB 455 (2004).
5

Id.

6

See Harley Sims, Jr., 56 ECAB 320 (2005); Katherine T. Kreger, 55 ECAB 633 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a) (October 2009).
8

A.J., Docket No. 10-619 (issued June 29, 2010) (a makeshift/odd-lot position generally lacks a position
description with specific duties, physical requirements and a work schedule).
9

Supra note 7 at Chapter 2.814.7(c)(1).

3

The employing establishment offered appellant the position of seasonal modified laborer
position within the restrictions established by Dr. Smith. Appellant accepted the position and
returned to work on May 21, 2012. As he was in a temporary position at the time of his injury,
OWCP may use actual wages in a temporary position to determine his wage-earning capacity.10
The position must be available for at least 90 days in order to be appropriate.11 The record
establishes that appellant’s temporary, seasonal position was for more than 90 days as the period
of employment was from May 20 to November 3, 2012. Consequently, OWCP properly found
that the wages in his position of modified seasonal laborer fairly and reasonably represented his
wage-earning capacity
On appeal, appellant’s representative argues that OWCP failed to take into consideration
the wages he would have earned outside of the seasonal job he performed for the employing
establishment. He argued that either the employing establishment should offer appellant
employment for the year within his medical restrictions, that he be rehabilitated or receives
compensation for the six months he was not employed as a result of work restrictions caused by
the employment injury. No evidence was submitted to support appellant’s conditions regarding
his inability to obtain employment during the period he was not employed by the employing
establishment. As noted, he was employed in a seasonal position at the time of his injury. The
employing establishment was not required to offer appellant yearly employment.
CONCLUSION
The Board finds that appellant’s actual earnings as a modified seasonal laborer fairly and
reasonably represented his wage-earning capacity.

10

Supra note 7; see also A.P., 58 ECAB 198 (2006); Connie L. Potratz-Watson, supra note 4.

11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 17, 2013 is affirmed.
Issued: April 16, 2014
Washington, DC

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

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

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

5