United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
U.S. POSTAL SERVICE, BROOKLYN
PROCESSING & DISTRIBUTION CENTER,
Brooklyn, NY, Employer
__________________________________________

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Appearances:
Tom McMenamy, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1309
Issued: December 22, 2020

Case Submitted on the Record

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

JURISDICTION
On June 24, 2020 appellant, through her representative, filed a timely appeal from a
March 12, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2
As more than 180 days has elapsed from OWCP’s last merit decision, dated December 5, 2019, to
1

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

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, appellant’s representative asserted that oral argument should be granted because the medical
evidence of record was sufficient to establish an employment-related injury. The Board, in exercising its discretion,
denies appellant’s request for oral argument because the Board does not have jurisdiction over the merits of the claim
the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument
in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral
argument request is denied and this decision is based on the case record as submitted to the Board.

the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 20, 2018 appellant, then a 53-year-old automation clerk, filed a traumatic
injury claim (Form CA-1) alleging that on August 22, 2018 she experienced burning and stinging
sensations and pain in her elbow, both hands, and shoulder while in the performance of duty. She
stopped work on the date of injury. In a statement of even date, appellant related that she reported
her claimed injury to her supervisor on the date of injury, she sought medical treatment for her
condition and was placed off work by her physician, and she returned to work on
September 10, 2018.
In support of her claim, appellant submitted chiropractic care certificates dated August 23
and September 5, 2018 by Dr. Avrum I. Musnik, a chiropractor. Dr. Musnik indicated that
appellant was seen in his office from August 23 through September 8, 2018 for a spinal condition.
Dr. Musnik noted that she should be excused from work due to an acute exacerbation of her spinal
condition.
Appellant also submitted medical reports by Dr. Victor Katz, an attending Board-certified
orthopedic surgeon. In a September 18, 2018 report, physical therapy letter, and patient
instructions dated September 21, 2018, Dr. Katz noted a history that appellant sustained a workrelated injury due to her repetitive work duties. He diagnosed cervical herniated disc, cervical
radiculopathy on the right, lumbar radiculopathy on the left, lumbar herniated disc, right shoulder
impingement and bursitis, right elbow medial and lateral epicondylitis, left elbow medial
epicondylitis, cervicalgia, lumbago. Dr. Katz ordered physical therapy to appellant’s conditions.
He advised that she was temporarily totally disabled from her current work duties due to injuries
sustained during the course of employment.
Thereafter, OWCP received additional medical evidence from Dr. Katz. In duty status
reports (Form CA-17) dated October 18, November 27, and December 18, 2018, Dr. Katz
reiterated appellant’s history of injury and his prior diagnosis of right shoulder impingement due
to injury. He again advised that she was not fit for duty. In a September 18, 2018 patient
instructions, Dr. Katz noted that appellant was seen on that date due to injuries that occurred on
the job over a period of time.
In a development letter dated January 15, 2019, OWCP indicated that when appellant’s
claim was first received it appeared to be a minor injury that resulted in minimal or no lost time
from work and payment of a limited amount of medical expenses was administratively approved.
It explained that it had reopened the claim for consideration because she had not returned to work

3

5 U.S.C. § 8101 et seq.

2

in a full-time capacity. OWCP requested that appellant submit additional factual and medical
evidence in support of her claim and provided a questionnaire for her completion.
OWCP subsequently received additional medical evidence from Dr. Katz. In narrative
reports dated October 18, November 27, and December 18, 2018, January 22, 2019, Dr. Katz
reiterated appellant’s history of injury and his prior cervical, lumbar, right shoulder, and bilateral
elbow diagnoses and opinion that she was temporarily totally disabled. In Form CA-17 reports
dated January 22, 2019, he continued to advise that she was not fit for duty.
On February 2, 2019 appellant responded to OWCP’s development letter. She described
her work duties, the development of her claimed injuries, and history of her medical treatment.
Appellant contended that her medical conditions were caused by her employment duties.
Appellant submitted narrative reports and Form CA-17 reports dated January 24,
February 19, and March 19, 2019 in which Dr. Katz restated his prior cervical, lumbar, right
shoulder, and bilateral elbow diagnoses and opinion that appellant was temporarily totally disabled
and not fit for duty.
In a second development letter dated March 28, 2019, OWCP requested that the employing
establishment provide additional information regarding appellant’s claim. In a separate
development letter of even date, it requested that Dr. Katz provide a rationalized opinion as to
whether appellant’s current condition was caused, aggravated, accelerated, or precipitated by her
work activities.
On April 4, 2019 OWCP converted appellant’s traumatic injury claim to an occupational
disease claim because the claimed incidents and conditions at work occurred over the course of
more than one workday or work shift.4
OWCP received a March 22, 2019 cervical spine magnetic resonance imaging (MRI) scan
report by Dr. Michael Reichel, a Board-certified diagnostic radiologist, who provided an
impression of mild multilevel degenerative cervical changes.
In an April 4, 2019 statement, the employing establishment responded to OWCP’s
development letter. It primarily agreed with appellant’s statement of injury. The employing
establishment was unaware of what task, frequency and duration she performed which resulted in
her exposure or contact. In order to minimize appellant’s effects of exposure, it moved her to a
lighter machine that had less volume and she was also given extra help. The employing
establishment indicated that it was unaware of her bilateral hand, shoulder, and elbow symptoms.
Appellant’s last day at work was September 19, 2018. The employing establishment provided an
official copy of appellant’s position description.
Dr. Aaron S. Greenberg, a Board-certified internist, noted in an August 20, 2018 certificate
to return to work, that appellant had been out from August 16 to 17, 2018. He indicated that she
could return to work on August 20, 2018.

4

See 20 C.F.R. § 10.5(q), (ee).

3

In a March 26, 2019 right shoulder MRI scan report, Dr. Christian P. Annese, a Boardcertified diagnostic radiologist, provided impressions of tendinosis with a full-thickness, partial
width tear of the anterior and mid insertional footprint of the supraspinatus tendon; tendinosis with
interstitial delamination tear and fluid at the myotendinous junction of the infraspinatus; tendinosis
of the subscapularis with low-grade interstitial partial tear; tendinosis and partial tear of the intraarticular biceps and biceps labral complex; degenerative type tear of the superior labrum; and small
effusion with subacromial subdeltoid bursitis.
In response to OWCP’s March 28, 2019 development letter, Dr. Katz submitted an
April 16, 2019 report in which he reiterated his prior diagnoses and opinion on appellant’s
disability from work. Additionally, he opined that she had sustained a work-related injury that
occurred over time due to her automation clerk work duties.
OWCP, by decision dated May 20, 2019, denied appellant’s occupational disease claim
finding that she had not submitted a rationalized medical opinion explaining how her diagnosed
conditions were causally related to the accepted factors of her federal employment. Consequently,
it found that the requirements had not been met to establish an injury or medical condition causally
related to the accepted employment factors.
In a March 22, 2019 lumbar spine MRI scan report, Dr. Reichel provided: impressions of
mild multi-level degenerative lumbar changes; kidney history consistent with normal anatomic
variation; and diverticulosis.
On August 8, 2019 appellant requested reconsideration of the May 20, 2019 decision. She
submitted a July 16, 2019 letter by Dr. Katz. Dr. Katz noted appellant’s repetitive work duties,
reviewed diagnostic test results, and discussed findings on physical examination of the right
shoulder. He believed that her right shoulder injury was causally related to her repetitive work
duties. Dr. Katz advised that appellant sustained a right shoulder full-thickness tear as a direct
result of her federal employment. He requested authorization for her to restart physical therapy
and recommended arthroscopic rotator cuff repair to treat her right shoulder condition.
In a November 6, 2019 decision, OWCP denied modification of the May 20, 2019 decision
finding that appellant had not submitted sufficient medical evidence to establish a medical
condition causally related to the accepted work factors, as her physician did not provide a
rationalized opinion on causal relationship.
On November 26, 2019 appellant requested reconsideration of the November 6, 2019
decision. She submitted a November 12, 2019 letter by Dr. Katz who reiterated his opinions and
treatment plan as set forth in his prior letter of July 16, 2019.
OWCP, by decision dated December 5, 2019, denied modification of its prior decisions,
again finding that Dr. Katz failed to provide a rationalized medical opinion on causal relationship.
Appellant, on February 19, 2020, requested reconsideration. She submitted an additional
January 9, 2020 letter by Dr. Katz who continued to opine that appellant’s right shoulder fullthickness tear was directly caused by her repetitive work duties, request authorization for her to
restart physical therapy, and recommend right shoulder arthroscopic rotator cuff repair.

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In a March 12, 2020 decision, OWCP denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely February 19, 2020 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that she did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

5
5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
6

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request under 20 C.F.R. § 10.606(b)(3). OWCP previously
denied her claim because the medical evidence of record did not contain a rationalized opinion
that her diagnosed conditions were causally related to the accepted employment factors. In support
of her reconsideration request, appellant submitted a new report dated January 9, 2020 in which
Dr. Katz related appellant’s repetitive work duties, diagnosed right shoulder full-thickness tear,
opined that the diagnosed condition was directly caused by her work duties, and addressed her
treatment plan. This evidence, however, essentially reiterated Dr. Katz’s diagnosis and opinion
set forth in his prior July 16 and November 12, 2019 reports of record. Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.10 As appellant failed to provide relevant and pertinent new evidence,
she is not entitled to a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.11
On appeal appellant’s representative contends that the evidence submitted is sufficient to
establish an employment-related injury. However, as explained above, the Board lacks jurisdiction
to review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).

10

R.R., Docket No. 18-1562 (issued February 22, 2019); A.A., Docket No. 18-0031 (issued April 5, 2018).

11

D.G., Docket No. 19-1348 (issued December 2, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

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Appearances:
Anna E. Dow, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-235
Issued: October 5, 2011

Case Submitted on the Record

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

JURISDICTION
On October 30, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs (OWCP) decision dated May, 3, 2010, which denied modification of a
decision denying his claim for an emotional condition. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
emotional condition in the performance of duty.
FACTUAL HISTORY
On July 26, 2003 appellant, then a 50-year-old customer service supervisor, filed an
occupational disease claim alleging depression and anxiety due to work stress. He first became
1

5 U.S.C. § 8101 et seq.

aware of his condition on December 2, 2002 and realized it was related to his employment on
June 16, 2003. Appellant stopped work on June 16, 2003. On August 12, 2003 OWCP requested a
detailed description of the work factors to which he attributed his claimed illness.
Appellant alleged that his supervisors, Postmaster Benny Daigle and officer-in-charge Eloise
Colbert, failed to provide guidance and upstaged him in front of subordinates to such an extent that
his decisions would not be upheld by his superiors. He stated that Mr. Daigle was absent 10 of 21
weeks from about November 2002 to March 2003 and he was the only manager covering the office
from 5:00 a.m. to 5:00 p.m. and assumed additional duties. When Mr. Daigle was available during
that period, appellant was required to do split shifts so Mr. Daigle could attend to his ailing father.
Appellant alleged that, from December 2002 through March 2003, he was shorthanded two clerks
every week and called other employing establishment facilities daily for assistance. He alleged that
his request for vacation was denied in September 2002 because Mr. Daigle was out. Appellant
finally was granted vacation the week of October 5, 2003. On December 2, 2002 he was verbally
reprimanded by Mr. Daigle for not scheduling an extra clerk for the Christmas rush. From
November 2002 to March 2003 appellant had continuous conflicts with Mr. Daigle about an
employee’s rights when requesting sick leave. He asserted that from February 3 to 7, 2003,
Mr. Daigle was on sick leave. Appellant was also sick and the postmaster requested that he work
on his day off. He alleged that his annual leave for Memorial Day was granted but then taken away
by Ms. Colbert, who also charged him with two days of leave without pay rather than sick leave for
July 24 and 25, 2003, although his medical documentation was forthcoming. On February 6, 2003
Dwayne Jackson a carrier, spoke to appellant in his cubicle and became agitated and belligerent,
using profanity and making verbal and physical threats against appellant. Appellant requested that
Mr. Jackson leave the workplace and reported the incident to the Threat Assessment Team. Despite
the zero tolerance violence policy, Mr. Jackson was permitted to return to the employing
establishment and resume his duties in April 2003. On February 10, 2003 Sandra Babin, a clerk,
requested light duty but Mr. Daigle advised that light-duty assignments were not offered and
instructed appellant to send her home. As a result Ms. Babin filed a grievance against appellant for
not following the union contract. Appellant asserted that he was improperly issued a letter of
warning on March 7, 2003 and a proposed letter of warning in lieu of a seven-day suspension on
June 18, 2003.
Appellant submitted treatment notes from Dr. Rao R. Narra, a Board-certified internist,
dated January 3 to July 22, 2003. He was treated for depression and generalized anxiety and
advised to be out of work until June 26, 2003. Appellant submitted copies of the letter of warning
and proposed letter of warning in lieu of a seven-day suspension for failure to properly perform his
assigned duties.
In an undated statement, Mr. Daigle noted that appellant performed his job well until
April 2002 when he appeared to have alcohol on his breath. He referred appellant to the Employee
Assistance Program. Mr. Daigle noted that appellant failed to handle his position with authority and
accountability. He noted that the workplace violence incident occurred due to appellant’s inability
to supervise his employees. Mr. Daigle advised that appellant had a confrontation with the same
carrier three times and each time the amount of intimidation escalated. He noted that discipline was
issued to the carrier but, under a settlement, he was returned to the workplace. Mr. Daigle disputed
appellant’s assertion that from November 2002 to April 2003 he was out of the office 10 of 18
weeks or that appellant was forced to work unpaid overtime. He was always available to appellant

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through telephone or pager. Mr. Daigle noted that appellant was aware that his position description
included filling in for the postmaster with no additional compensation. He agreed that the office
experienced a clerk shortage. Mr. Daigle advised that there had been a hiring freeze for clerks and
everyone worked shorthanded. He stated that “additional duties working over 10 hours a day, in all
fairness there was some days … we all do from time to time.” Mr. Daigle noted that appellant
worked some split shifts for him when his father was ill. Regarding the clerk shortage at Christmas,
he stated that it was appellant’s responsibility to meet the needs of his customers during that time
and appellant was aware of the high business volume during the holiday season. Regarding the
grievance filed by Ms. Babin regarding light duty, Mr. Daigle advised that her request was based on
a nonwork injury and the policy was not to offer light duty for such injuries. Mr. Daigle noted that
the letter of warning issued was proper as appellant failed to perform his duties.
In a September 21, 2003 statement, Ms. Colbert noted that she had an immediate concern
from a perceived smell of alcohol on appellant’s breath when she spoke with him. She indicated
that she did not deny his request for annual leave and granted three days of annual leave from
May 22 to 24, 2003. Ms. Colbert stated that appellant received a predisciplinary discussion during
the first week of June 2003 prior to the letter of warning issued on June 18, 2003 because he did not
satisfactorily perform his duties. Regarding appellant’s allegation that he was charged leave
without pay instead of sick leave, she advised that he did not timely provide medical documentation
supporting his absences and an adjustment was made with the documentation provided.
In a decision dated September 29, 2003, OWCP denied appellant’s claim finding that the
claimed emotional condition did not occur in the performance of duty.
On April 28, 2004 appellant requested reconsideration. He reiterated his allegations and
noted a pattern of escalating violent behavior by Mr. Jackson including the February 6, 2003 threat.
In a June 25, 2003 note, Dr. Narra stated that appellant was unable to work through July 9, 2003.
Also submitted were reports from Dr. S. Rao Chalasani, an internist, from July 2, 2003 to
March 24, 2004. He treated appellant for significant depression and anxiety and noted that he could
not work until April 7, 2004. In a September 15 and December 17, 2003 reports, Dr. Chalasani
noted appellant’s problems with a new female postmaster and a carrier who threatened him in front
of others. Dr. Chalasani noted that appellant feared returning to work with the carrier who
threatened him.
On July 30, 2004 OWCP denied modification of the September 29, 2003 decision.
On June 24, 2005 appellant requested reconsideration. He submitted a statement from
Winifred Hernandez, a rural carrier, who witnessed a violent confrontation between Mr. Jackson
and appellant on February 6, 2003. She stated that Mr. Jackson spoke loudly and “threatened to
strike a woman and knock her through the floor.” Ms. Hernandez noted that appellant attempted to
get Mr. Jackson into his office but Mr. Jackson refused and appellant requested that he leave the
premises. Ms. Hernandez stated that this was the third confrontation that she saw between
Mr. Jackson and management. A witness statement from Gail Ewing, a rural carrier, observed at
least two separate occasions in which Mr. Jackson lost his temper at work and either left or was
asked to leave the premises. Reports from Dr. Chalasani, dated January 26 and April 18, 2005,
noted that appellant was symptomatic and under stress and could not return to his previous job
because of adverse conditions.

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In a July 27, 2004 statement, Ms. Colbert noted that she was aware of the workplace
incident with appellant and Mr. Jackson, who returned to work in April 2003. Prior to his return to
the workplace she contacted the Employee Workplace Intervention Office and the Employee
Assistance Office. In an undated statement, Mr. Daigle confirmed that a violent verbal incident
occurred between Mr. Jackson and a clerk. He indicated that the Employee Assistance Program
counselors and workplace violence specialists came to the workplace offering assistance to staff.
In a decision dated August 28, 2006, OWCP denied modification of the April 30, 2006
decision.
On February 24, 2007 appellant requested reconsideration. In a letter Cleola Moore, a
counselor, noted that he participated in counseling from December 23, 2002 to February 11, 2003.
In reports dated October 2, 2006 and February 7, 2007, Dr. Chalasani noted that appellant’s
depression and anxiety had not improved and he was totally disabled. A witness statement from
Lisa Laurent, a coworker, noted that on February 5, 2003 she witnessed an outburst between
Mr. Jackson and Cheryl Ellis. On February 6, 2003 she heard a verbal exchange between appellant
and Mr. Jackson who yelled that Ms. Ellis “bumped me the other day and if she bumps me again,
I’m going to put a hole in her ass.” Appellant submitted a February 10, 2003 statement from
Ms. Ellis who noted that, on February 6, 2003, Mr. Jackson screamed at appellant and then
approached her in a threatening manner. Ms. Ellis stated that Mr. Jackson noted that he was “going
to knock me to ground and beat me up.” She felt threatened and appellant interceded, instructing
Mr. Jackson to leave.
In a decision dated October 24, 2007, OWCP denied appellant’s reconsideration request
finding that the request was insufficient to warrant review of the prior decision.2 In a May 7, 2009
decision, it denied modification of the prior decision.
On April 13, 2010 appellant requested reconsideration. He submitted a July 12, 2009 report
from Dr. Chalasani who noted providing psychiatric treatment to appellant following an incident
with Mr. Jackson. Appellant reported that Mr. Jackson become irate, loud and angry after talking
about an incident with a coworker threatening that “if nobody will take care of her, I will” and “I
will stomp on her.” He advised that the incident was investigated but Mr. Jackson was allowed to
return to work after two weeks. Dr. Chalasani noted that appellant felt threatened, nervous and
anxious due to Mr. Jackson’s presence at the employing establishment. As a result of this stress
appellant’s symptoms became refractory to treatment and he was totally disabled.
In a decision dated May 3, 2010, OWCP denied modification of the prior decisions.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit the
following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused or
2

Appellant appealed to the Board. In a December 19, 2008 order remanding case, the Board set aside the
October 24, 2007 OWCP decision and instructed it to issue a merit decision on appellant’s claim. Docket No. 08-1513
(issued December 19, 2008).

4

contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to the emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within coverage under FECA.5
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.6 Allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.7 Where the claimant alleges compensable factors of employment, he
or she must substantiate such allegations with probative and reliable evidence.8 Personal
perceptions alone are insufficient to establish an employment-related emotional condition.9 On the
other hand the disability is not covered where it results from such factors as an employee’s fear of a
reduction-in-force or his frustration from not being permitted to work in a particular environment or
to hold a particular position.10
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP as part of its adjudicatory function,
must make findings of fact regarding, which working conditions are deemed compensable factors of
employment and are to be considered by the physician when providing an opinion on causal
relationship and, which working conditions are not deemed factors of employment and may not be
considered.11 If a claimant does implicate a factor of employment, OWCP should then determine
whether the evidence of record substantiates that factor. When the matter asserted is a compensable
factor of employment and the evidence of the matter establishes the truth of the matter asserted,
OWCP must base its decision on an analysis of the medical evidence.12
3

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

4

28 ECAB 125 (1976).

5

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

6

Lillian Cutler, supra note 4.

7

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

8

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

9

Roger Williams, 52 ECAB 468 (2001).

10

See Lillian Cutler, supra note 4.

11

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

12

Id.

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ANALYSIS
When disability results from an emotional reaction to regular or specially assigned work
duties or a requirement imposed by the employment, the disability is deemed compensable.13
Appellant alleged that his claimed condition arose, in part, because he was overwhelmed with
performing his work assignments beginning in November 2002.
He asserted that from
November 2002 to March 2003, Mr. Daigle was out approximately 10 of 21 weeks and he became
the single manager in the office from 5:00 a.m. to 5:00 p.m. and had additional duties. Appellant
also noted having to perform split shifts. He further alleged that from December 2002 through
March 2003, he was shorthanded two clerks every week and called other employing establishment
daily for clerk assistance. The Board finds that appellant has established a compensable factor of
employment with respect to his allegations of having stress from trying to do his job and cover for
Mr. Daigle while he was out on leave from November 2002 to March 2003. Mr. Daigle confirmed
that he was out of the office, that appellant had extra duties and that there were clerk shortages
throughout the employing establishment. He indicated that “additional duties working over 10
hours a day, in all fairness there was some days … we all do from time to time.” Mr. Daigle also
confirmed that appellant worked split shifts. Appellant also attributed stress from a grievance filed
against him by Ms. Babin with regard to providing her a light-duty assignment. As a supervisor, his
regular duties involve handling grievances filed against him. Mr. Daigle confirmed that the
grievance was filed against appellant in this matter. Appellant was in the performance of his regular
or specially assigned duties while attending or responding to these matters and they are
compensable factors under Cutler.14
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEwen,15 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
FECA would attach if the factual circumstances surrounding the administrative or personnel action
established error or abuse by the employing establishment superiors in dealing with the claimant.
Absent evidence of such error or abuse, the resulting emotional condition must be considered selfgenerated and not employment generated. In determining whether the employing establishment
erred or acted abusively, the Board has examined whether the employing establishment acted
reasonably.16
Appellant attributed stress, in part, to a verbal reprimand by Mr. Daigle in December 2002
for not scheduling an extra clerk for Christmas rush, conflicts over the proper procedure for
requesting sick leave and the failure of management to provide guidance and support. The Board
has found that an employee’s complaints concerning the manner in which a supervisor performs his
13

Penelope C. Owens, 54 ECAB 684 (2003); see Lillian Cutler, supra note 4.

14

See Lillian Cutler, supra note 4.

15

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

16

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

6

duties as a supervisor or the manner in which a supervisor exercises his supervisory discretion fall,
as a rule, is outside the scope of coverage provided by FECA. This principle recognizes that a
supervisor or manager in general must be allowed to perform his duties, that employees will at
times dislike the actions taken, but that mere disagreement or dislike of a supervisory or
management action will not be actionable, absent evidence of error or abuse.17 The Board notes
that the assignment of work is an administrative function18 and the manner in which a supervisor
exercises his or her discretion falls outside the ambit of FECA. Absent evidence of error or abuse,
appellant’s mere disagreement or dislike of a managerial action is not compensable.19 The Board
finds that appellant has not offered sufficient evidence to establish error or abuse regarding his work
assignments. The evidence does not establish that the employing establishment acted unreasonably.
As noted, Mr. Daigle indicated that appellant failed to perform his job with authority and
accountability and was aware of the high volume of business during the holiday season and it was
his responsibility to see that customer needs were met. Appellant presented no corroborating
evidence to support that the employing establishment acted unreasonably in assigning work. He has
not established administrative error or abuse in the performance of these actions and therefore they
are not compensable under FECA.
Appellant further alleged that his leave requests were denied September 2002, that from
February 3 to 7, 2003 his supervisor requested that he work while on leave and that annual leave for
Memorial Day was granted and then taken away. The Board notes that the handling of leave
requests and attendance matters are generally related to the employment, they are administrative
functions of the employer and not duties of the employee.20 The Board finds that the employing
establishment acted reasonably in this administrative matter. The employing establishment denies
appellant’s allegations and he presented no corroborating evidence to support that the employing
establishment erred or acted abusively in this matter.
Appellant asserted that he was improperly issued disciplinary actions on March 5 and
June 18, 2003. His allegations that the employing establishment engaged in improper disciplinary
actions, also relate to administrative or personnel matters, unrelated to his regular or specially
assigned work duties.21 Although the handling of disciplinary actions are generally related to the
employment, it is an administrative function of the employer and not a duty of the employee.22 The
evidence is insufficient to establish that the employing establishment erred or acted abusively in this
matter. Mr. Daigle and Ms. Colbert stated that the letters of warning were issued to appellant for
failure to perform his duties. They indicated that he was provided with directive sessions which he
17

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

18

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

19

See also Peter D. Butt Jr., 56 ECAB 117 (2004); see Barbara J. Latham, 53 ECAB 316 (2002); (allegations such
as improperly assigned work duties, which relate to administrative or personnel matters, unrelated to the employee’s
regular or specially assigned work duties do not fall within the coverage of FECA).
20

See Judy Kahn, 53 ECAB 321 (2002).

21

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB
581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
22

Id.

7

chose to ignore. Although appellant has made allegations that the employer erred in this
administrative matter, appellant has not provided evidence to substantiate any such actions were in
error or unreasonable. He has not established a compensable factor pertaining to his performance
assessment.
Appellant also alleged that he was verbally abused by Mr. Jackson on February 6, 2003.
Appellant stated that Mr. Jackson became agitated and belligerent and used profanity and made
threats against him. 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 FECA.23 The Board has generally held that being spoken to in a raised or
harsh voice does not of itself constitute verbal abuse or harassment.24 However, the record supports
that the verbal altercation on February 6, 2003 rose to the level of verbal abuse and falls within the
coverage of FECA.25 Appellant submitted a witness statement from Ms. Hernandez, a carrier, who
noted observing a violent confrontation between Mr. Jackson and appellant on February 6, 2003.
Ms. Hernandez confirmed that Mr. Jackson spoke loudly and “threatened to strike a woman and
knock her through the floor.” She indicated that after Mr. Jackson refused to go into appellant’s
office appellant requested he leave the premises. Ms. Ewing, a carrier, also observed at least two
separate occasions in which Mr. Jackson lost his temper at work. Similarly, Ms. Laurent noted that
on February 5, 2003 she witnessed an outburst from Mr. Jackson and Ms. Ellis and on February 6,
2003, she heard a verbal exchange between appellant and Mr. Jackson. She indicated that
Mr. Jackson yelled at appellant “she bumped me the other day and if she bumps me again, I’m
going to put a hole in her ass.” A February 10, 2003 statement from Ms. Ellis noted that, on
February 6, 2003, Mr. Jackson was screaming at appellant and then approached her threatening
violence. Appellant’s allegations were also confirmed by Mr. Daigle who noted that appellant had a
verbally violent confrontation with Mr. Jackson three times and each time it escalated in the amount
of intimidation. Likewise, on September 21, 2003, Ms. Colbert noted being aware of the workplace
incident with appellant.26
Appellant has established compensable factors of employment with regard to additional
duties due to Mr. Daigle’s absence and staffing shortages, a grievance filed against him and the
February 6, 2003 encounter with Mr. Jackson. Consequently, OWCP must base its decision on an
analysis of the medical evidence. The case will therefore be remanded to OWCP for this purpose.27
After such further development as deemed necessary, OWCP shall issue an appropriate merit
decision.
23

Harriet J. Landry, 47 ECAB 543, 547 (1996).

24

T.G., 58 ECAB 189 (2006).

25

See, e.g., Alfred Arts, 45 ECAB 530, 543-44 (1994) and cases cited therein (finding that the employee’s reaction to
coworkers’ comments such as “you might be able to do something useful” and “here he comes” was self-generated and
stemmed from general job dissatisfaction). Compare Abe E. Scott, 45 ECAB 164, 173 (1993) and cases cited therein
(finding that a supervisor’s calling an employee by the epithet “ape” was a compensable employment factor).
26

It also appears that appellant, as a supervisor, was responsible for interacting with Mr. Jackson when Mr. Jackson
lost his temper. As appellant had to encounter Mr. Jackson as part of his job duties, this would also be an employment
factor under Cutler. See supra note 4.
27

Tina D. Francis, 56 ECAB 180 (2004).

8

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded to OWCP for proceedings consistent
with this opinion of the Board.
Issued: October 5, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT AGENCY, Boston, MA,
Employer
__________________________________________

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Appearances:
Artin H. Coloian, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1724
Issued: January 26, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 2, 2008 appellant, through his attorney, filed a timely appeal from a
February 27, 2008 nonmerit decision of the Office of Workers’ Compensation Programs denying
his request for reconsideration. As more than one year has elapsed since the last merit decision
and the filing of this appeal, the Board lacks jurisdiction to review the merits of the case pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review of
his claim pursuant to 5 U.S.C. § 8128.

1

See 20 C.F.R. §§ 501.2(c), 501.3.

FACTUAL HISTORY
On April 26, 1989 appellant, then a 28-year-old special agent, filed a claim alleging that
he sustained an injury to his lungs on March 2, 1989 when he inhaled sulphuric acid while
destroying a chemical lab. He did not stop work. The Office accepted his claim for diffuse
pulmonary bronchospasm.
On October 25, 2005 appellant filed a claim for a schedule award. He submitted a report
dated March 4, 2005 from Dr. Nick Mucciardi, a Board-certified internist, in support of his
schedule award request.
On February 5, 2006 an Office medical adviser reviewed
Dr. Mucciardi’s report and opined that appellant had a 45 percent whole person impairment of
the lungs. On February 15, 2006 the employing establishment notified the Office that appellant
had not received continuation of pay and had not lost time from work due to his employment
injury.
By decision dated March 9, 2006, the Office granted appellant a schedule award for a 45
percent impairment to the lungs.2 The period of the award ran for 104.4 weeks from March 24,
2005 to December 1, 2007. The Office found that March 2, 1989, the date of injury, was the
effective pay rate date.3
On September 19, 2006 appellant, through his attorney, requested reconsideration of the
March 22, 2006 decision. Counsel contended that the Office should have used appellant’s pay
rate on the date of his diagnosis by Dr. Mucciardi rather than the date of injury. He noted that
the extent of appellant’s injury after his chemical exposure was latent for many years. On
November 6, 2006 the attorney argued that the Office should base his pay rate on the date of
maximum medical improvement rather than the date of injury.
By decision dated November 28, 2006, the Office denied modification of its March 9,
2006 decision. It found that the date of injury was March 2, 1989, the date that appellant was
last exposed to the conditions which caused his condition. The Office noted that the date of
maximum medical improvement was not a potential date for determining pay rate under the
Federal Employees’ Compensation Act.4
On November 23, 2007 appellant, through his attorney, requested reconsideration.
Counsel asserted that he sustained chemical exposure on two occasions after the March 2, 1989
incident, from November 1989 through April 1990 and June through October 1990. He further
argued that appellant experienced multiple recurrences of his condition which required medical
2

The Office initially issued its schedule award decision on February 22, 2006. On March 9, 2006 it reissued the
decision and sent a copy to appellant’s authorized representative. The Office indicated that it was granting him a
schedule award for 45 percent whole person impairment rather than a 45 percent impairment of the lungs; however,
this is a typographical error. It properly multiplied the percentage for the applicable class of whole person
respiratory impairment by 312 weeks to obtain the number of week’s payable in the schedule award. Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(c)(1) (March 2005).
3

It does not appear that the Office updated appellant’s date-of-injury pay rate to include cost-of-living increases.

4

5 U.S.C. §§ 8101-8193.

2

treatment. Appellant did not take time off work because he believed that his impairment was
mild. He stopped work on May 20, 2004 to undergo surgery for thyroid cancer. The attorney
asserted that his chemical exposure caused his thyroid cancer. He reiterated that appellant’s
compensation should be based on the pay rate applicable when Dr. Mucciardi diagnosed his
condition. The attorney described in detail appellant’s employment history and medical
treatment received. He submitted medical evidence from 1989. In a form report dated July 25,
1989, Dr. Charles J. Hatem, a Board-certified internist, diagnosed diffuse pulmonary
bronchospasm secondary to sulfuric acid inhalation and opined that appellant was disabled from
February 1989 to the present. Dr. Hatem indicated that he could attend school but not perform
physical work.
By decision dated February 27, 2008, the Office denied appellant’s request for
reconsideration after finding that the evidence submitted was insufficient to warrant merit review
of the claim. It noted that he did not document any exposure to chemicals after March 2, 1989 or
establish any dates that he was disabled from employment due to his accepted employment
injury. The Office further found that it had previously addressed appellant’s contention that his
pay rate should be based on the date of Dr. Mucciardi’s March 4, 2005 report.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) submit relevant and pertinent new evidence not
previously considered by the Office.6 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.7 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10 While the reopening of a case may be predicated

5

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

10

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

3

solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.11
ANALYSIS
The Office accepted that appellant sustained diffuse pulmonary bronchospasm due to
chemical exposure on March 2, 1989. In a decision dated March 9, 2006, it granted him a
schedule award for a 45 percent permanent impairment of the lungs. The Office based
appellant’s pay rate on the date that his injury occurred, March 2, 1989. Appellant requested
reconsideration of the schedule award, arguing that his pay rate should be the date he reached
maximum medical improvement on March 24, 2005 or the date of Dr. Mucciardi’s
March 4, 2005 medical report. By decision dated November 28, 2006, the Office denied
modification of its schedule award decision. The Office noted that the Act provided that an
employee’s pay rate for compensation purposes was the greater of the employee’s pay as of the
date of injury, the date disability begins or the date of recurrence of disability if more than six
months after returning to work.12
On November 23, 2007 appellant again requested reconsideration. His attorney argued
that he experienced chemical exposure in the performance of duty on two occasions subsequent
to March 2, 1989. Appellant did not, however, submit any evidence supporting his contention.
Consequently, his argument does not have a reasonable color of validity such that it would
warrant reopening his case for merit review.13
Appellant further argued that he experienced multiple recurrences of his bronchial
condition. He did not miss time from work because he believed that his condition was not
serious. Appellant’s attorney noted that appellant missed time from work beginning March 20,
2004 due to thyroid cancer. The Office has not accepted the condition of thyroid cancer as
employment related.14 The record contains no evidence that appellant sustained any period of
disability due to his accepted work injury. He has not raised any argument with sufficient color
of validity to require the Office to reconsider whether it properly applied the provisions of
section 8101(4) in determining the applicable pay rate.15
Appellant’s attorney further argued that the pay rate should be based on either the date of
maximum medical improvement or the date of the medical report upon which the Office based
its schedule award determination. The Office, however, previously considered these arguments

11

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

12

5 U.S.C. § 8101(4).

13

M.E., 58 ECAB ___ (Docket No. 07-1189, issued September 20, 2007); Elaine M. Borghini, 57 ECAB
549 (2006).
14

It is appellant’s burden to establish any conditions not accepted by the Office as employment related through
the submission of rationalized medical evidence. Charles W. Doney, 54 ECAB 421 (2003).
15

See M.E., supra note 13.

4

in its November 28, 2006 decision. The submission of evidence or argument that repeats or
duplicates that already in the case record does not constitute a basis for reopening a case.16
Appellant submitted medical evidence from 1989. However, the medical evidence either
duplicates that already in the case record or is not relevant to the pertinent issue of whether the
Office properly determined his pay rate for compensation purposes. As discussed, the
submission of evidence which duplicates that already in the record or which is not relevant to the
issue at hand is insufficient to establish entitlement to further merit review.17
Appellant’s attorney argued that the medical evidence showed that he experienced
recurrences of his condition. He cited a form report dated July 25, 1989 from Dr. Hatem, who
opined that appellant was disabled from February 1989 to the present due to his inhalation of
sulfuric acid. Dr. Hatem noted on the form that he could attend school but not perform physical
work. A recurrence of disability, however, is an “inability to work after an employee has
returned to work….”18 The record contains no evidence that appellant stopped work due to his
employment injury and thus the attorney’s argument lacks a reasonable foundation.
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit
pertinent new and relevant evidence not previously considered. As he did not meet any of the
necessary regulatory requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review of
his claim pursuant to 5 U.S.C. § 8128.

16

Edward W. Malaniak, 51 ECAB 279 (2000).

17

See F.R., 58 ECAB ___ (Docket No. 05-15, issued July 10, 2007).

18

20 C.F.R. § 10.5(x).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 27, 2008 is affirmed.
Issued: January 26, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.Z., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND-STATIONS,
Coronado, CA, Employer
__________________________________________

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

Docket No. 11-1371
Issued: January 6, 2012

Case Submitted on the Record

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

JURISDICTION
On May 17, 2011 appellant filed a timely appeal from an April 12, 2011 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant sustained more than three percent binaural hearing loss for
which he received a schedule award.
FACTUAL HISTORY
On January 5, 2010 appellant, then a 55-year-old sheet metal mechanic, filed an
occupational disease claim alleging that he sustained bilateral hearing loss and tinnitus due to
1

5 U.S.C. § 8101 et seq.

exposure to hazardous noise during his federal employment. He submitted employing
establishment audiograms and medical reports reflecting diagnoses of bilateral hearing loss and
tinnitus.2
Following development of the evidence regarding appellant’s history of employmentrelated noise exposure, OWCP referred him to Dr. Theodore Mazer, a Board-certified
otolaryngologist, for an otologic examination and an audiological evaluation. In a report dated
May 21, 2010, Dr. Mazer provided the results of audiometric testing performed on that date.
Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the
following: right ear 20, 30, 25 and 30 decibels; left ear 25, 25, 30 and 45 decibels. Pure tone
hearing levels were within normal limits at 15 decibels on each ear. Speech discrimination was
100 percent in both ears at normal presentation. Middle ear impedance and reflexes were within
normal limits. Dr. Mazer concluded that appellant’s hearing loss was related to work-related
noise exposures, as the pattern of current loss was not inconsistent with noise exposure and there
was no other evident cause. He stated, however, that appellant’s subjective complaints of
hearing loss and tinnitus were out of proportion to the objective findings. Based on the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) Dr. Mazer calculated a 1.9 percent impairment on the right and a
9.4 percent impairment on the left, for a 3.1 percent binaural impairment. He indicated that
appellant’s description of his tinnitus constituted an annoyance not affecting activities of daily
living or sleep and therefore did not constitute any additional impairment under the A.M.A.,
Guides.
In a decision dated July 1, 2010, OWCP accepted appellant’s claim for bilateral hearing
loss.
On July 7, 2010 appellant requested a schedule award. He submitted a June 21, 2010
report from Dr. Nick Nurani, Board-certified in family medicine, who diagnosed bilateral
hearing loss. In a July 30, 2010 report, Dr. Thieuha Tuan Hoang, a treating physician, diagnosed
noise-induced bilateral hearing loss. He noted that appellant had complained for the past five
years of having bilateral tinnitus, which did not affect or hinder activities of daily living or sleep.
On July 20, 2010 an OWCP medical adviser reviewed Dr. Mazer’s May 21, 2010 report
and audiometric testing. Applying the provisions of the sixth edition of the A.M.A., Guides to
Dr. Mazer’s findings, the medical adviser determined that appellant had a 1.9 percent monaural
loss in the right ear and a 9.4 percent monaural hearing loss in the left ear, for a 3.1 percent
bilateral hearing loss. Noting that Dr. Mazer described appellant’s tinnitus as “an annoyance”
not affecting activities of daily living, he concluded that it did not warrant an additional rating
for schedule award purposes under the A.M.A., Guides. He noted that the date of maximum
medical improvement was May 21, 2010.

2

On February 18, 2010 Dr. Kevin Feig, Board-certified in the field of occupational medicine, diagnosed bilateral
hearing loss, which he opined was work related. On March 11, 2010 Dr. John Martinez, a treating physician,
diagnosed bilateral high-frequency hearing loss, noting that appellant had suffered from tinnitus for the past 10
years.

2

In a decision dated August 30, 2010, OWCP granted appellant a schedule award for a
three percent binaural sensorineural hearing loss based upon the reports of Dr. Mazer and an
OWCP medical adviser. The period of the award was from May 21 to July 21, 2010. The date
of maximum medical improvement was determined to be May 21, 2010.
On September 15, 2010 appellant requested an oral hearing. He stated that his tinnitus
affected activities of his daily living, noting that he was forced to sleep with a fan and take sleep
aids. Appellant submitted a November 11, 2010 report from Dr. John Harrison, a treating
physician, who diagnosed tinnitus. In a November 29, 2010 report, Dr. Ritvik Mehta, a Boardcertified otolaryngologist, diagnosed bilateral sensorineural hearing loss and associated bilateral
nonpulsatile tinnitus. On February 1, 2001 Dr. Nurani diagnosed hearing loss and tinnitus.
At a January 19, 2011 hearing, appellant testified that the ringing in his ears was worse
than his physicians had indicated. Accordingly, he contended that he was entitled to an
increased schedule award.
By decision dated April 12, 2011, an OWCP hearing representative affirmed the
August 30, 2010 decision, finding that the medical evidence was insufficient to establish that
appellant’s tinnitus affected activities of daily living.
LEGAL PRECEDENT
FECA’s schedule award provision and its implementing regulations3 set forth the number
of weeks of compensation payable to employees sustaining permanent impairment from loss of
or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.4 However, FECA 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.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions. The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. Binaural loss is
determined by first calculating the loss in each ear using the formula for monaural loss: the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(13).

5

See supra note 3. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

3

arrive at the amount of the binaural hearing loss.6 The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.7
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement has been reached is
based on the probative medical evidence of record and is usually considered to be the date of the
evaluation by the attending physician which is accepted as definitive by OWCP.8
The A.M.A., Guides provides that, if tinnitus interferes with activities of daily living,
such as sleeping, reading and other tasks requiring concentration, up to five percent may be
added to a measurable binaural hearing impairment.9 However, subjective information regarding
the impact of tinnitus on daily life should not be the sole criteria for determining impairment.
Objective data must be integrated with the subjective data to estimate the degree of
impairment.10
ANALYSIS
The Board finds that appellant has no greater than a three percent binaural hearing loss
for which he received a schedule award.
Appellant’s claim of occupational hearing loss was accepted by OWCP based on the
report of Dr. Mazer, a Board-certified otolaryngologist. An OWCP medical adviser properly
applied OWCP’s standardized procedures to the May 21, 2010 audiogram performed for
Dr. Mazer. Test results for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000
cycles per second revealed decibel losses of 20, 30, 25 and 30 decibels, respectively. These
decibels were totaled at 105 and were divided by 4 to obtain an average hearing loss at those
cycles of 26.25 decibels. The average of 26.25 decibels was then reduced by 25 decibels (the
first 25 decibels were discounted as discussed above) to equal 1.25 which was multiplied by the
established factor of 1.5 to compute a 1.9 percent monaural loss of hearing for the right ear.11
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per
second revealed decibel losses of the left ear of 25, 25, 30 and 45 decibels, respectively. These
decibels were totaled at 125 and were divided by 4 to obtain the average hearing loss at those
6

A.M.A., Guides (6th ed. 2009).

7

E.S., 59 ECAB 249 (2007); J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued
January 27, 2009).
8

Mark A. Holloway, supra note 5 at 325.

9

A.M.A., Guides 249. See also R.D., 59 ECAB 127, 131 (2007).

10

Robert E. Cullison, 55 ECAB 570 (2004).

11

E.S., 59 supra note 7.

4

cycles of 31.25 decibels. The average of 31.25 decibels was then reduced by 25 decibels (the
first 25 decibels were discounted as discussed above) to equal 6.25, which was multiplied by the
established factor of 1.5 to compute a 9.4 percent hearing monaural loss for the left ear.
OWCP’s medical adviser proceeded to calculate binaural loss by taking the lesser loss,
1.9, multiplying it by 5 (9.5), then adding it to the greater loss of 9.4 (18.9). This amount was
divided by six to arrive at the amount of the binaural hearing loss of three percent after rounding.
Under FECA, the maximum award for binaural hearing loss is 200 weeks of
compensation.12 Appellant is entitled to three percent of 200 weeks or 6 weeks of compensation,
the amount granted in this case. There is no medical evidence conforming to OWCP’s standards
that supports a greater impairment.13
Appellant argues on appeal that the schedule award should have accounted for his
tinnitus. The A.M.A., Guides provides that if tinnitus interferes with activities of daily living
such as sleeping, reading and other tasks requiring concentration, up to five percent may be
added to a measurable binaural hearing impairment.14 The Board has held, however, that a
claimant is not entitled to an additional schedule award where the record contains no medical
evidence directly addressing the impact of tinnitus on appellant’s activities of daily living.15 In
this case, Dr. Mazer acknowledged that appellant presented with bilateral tinnitus, but he advised
that appellant’s subjective complaints of hearing loss and tinnitus were out of proportion to the
objective findings and indicated that appellant’s description of his tinnitus constituted an
annoyance not affecting activities of daily living or sleep. None of the medical reports submitted
by appellant contains an opinion supporting his claim on appeal that his tinnitus condition
interferes with activities of daily living. Appellant therefore is not entitled to further
compensation due to tinnitus.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

12

It is well established that, if calculations based on the monaural hearing loss result in greater compensation,
then the monaural hearing loss calculation should be used. The maximum number of weeks of compensation for
hearing loss in one ear is 52 weeks. The Board finds that the hearing loss in appellant’s left ear should be rounded
to nine percent, the nearest whole number. Nine percent of 52 weeks equals 4.7 weeks of compensation. The right
ear loss of two percent equals 1.04 weeks of compensation. Since the binaural loss results in a greater number of
weeks, OWCP properly based the award on binaural hearing loss. See C.C., Docket No. 11-826 (issued
October 13, 2011).
13

A claimant retains the right to file for a schedule award or increased schedule award, at any time, based on new
exposure or on medical evidence indicating progression of an employment-related condition, resulting in permanent
impairment or increased impairment.
14

A.M.A., Guides, supra note 6 at 249. See also R.D., supra note 9.

15

R.D., supra note 9.

5

CONCLUSION
The Board finds that appellant has no more than a three percent binaural hearing loss, for
which he received a schedule award.16
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

16

On appeal, appellant contends that he is entitled to hearing aids. The Board has jurisdiction to consider and
decide appeals from final decisions of OWCP. The April 12, 2011 decision, however, did not address the issue of
hearing aids. Therefore, the Board does not have jurisdiction over this issue. See 20 C.F.R. § 501.2(c)

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newburgh, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Brigitte M. Gulliver, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0326
Issued: July 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 26, 2018 appellant, through counsel, filed a timely appeal from an August 8,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether OWCP has abused its discretion by denying appellant’s request for
authorization of right foot surgery.
FACTUAL HISTORY
On September 15, 2015 appellant, then a 27-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a right ankle/foot injury on
September 12, 2015 while in the performance of duty. He asserted that he was on his mail delivery
route when a dog chased him and that the injury occurred when he went up some stairs to escape
the dog. Appellant stopped work on September 12, 2015, but later returned to light-duty work.
OWCP accepted appellant’s claim for sprain of an unspecified ligament of the right ankle
and unspecified sprain of the right foot.
Appellant had visited an emergency room on September 12, 2015 where Dr. Alexis
Johnson, a Board-certified emergency medicine physician, produced a report on that date in which
he detailed the September 12, 2015 twisting incident and diagnosed right foot and ankle sprain.
Dr. Johnson obtained right foot x-rays which showed no fracture and he placed appellant’s right
foot/ankle in a splint.
Appellant received follow-up care from Dr. Mikhail Itingen, a Board-certified orthopedic
surgeon, who advised on September 16, 2015 that appellant had removed his splint and was
walking without crutches. Dr. Itingen’s physical examination of appellant’s right foot/ankle
demonstrated minimal swelling, no ecchymosis, mild tenderness at the anterolateral ankle, and
normal motor function.
The findings of an October 21, 2015 magnetic resonance imaging (MRI) scan of
appellant’s right foot showed a mild-to-moderate chronic Lisfranc sprain with subcortical cysts in
the medial cuneiform and base of the first metatarsal. The scan also showed slight arthrosis of the
dorsolateral second tarsometatarsal (TMT) joint and distal peroneus longus thickening at the
plantar base of the first metatarsal.
In a November 12, 2015 report, Dr. Itingen noted that recent right foot x-rays showed mild
TMT spurring. He placed appellant on light-duty work. On February 8, 2016 Dr. Itingen advised
that appellant had reported his right foot/ankle condition had improved and that he had been
working full duty. Upon physical examination, he observed mild swelling and spurring over the
first TMT joint. Dr. Itingen provided a diagnosis of TMT ligament sprain.
In a March 28, 2018 report, Dr. John L. Zboinski, a podiatrist specializing in foot and ankle
surgery, reported that appellant made an initial visit for his workers’ compensation case. He
provided a summary of appellant’s factual and medical history, including a description of the
September 12, 2015 injury, and reported findings of the physical examination he conducted.
Appellant had a positive anterior drawer sign in the right ankle, pain across the midtarsal joint of
the right foot, and pain upon range of motion of the right ankle. Dr. Zboinski advised that appellant

2

had an antalgic gait and that he might have some Lisfranc instability.
Dr. Zboinski advised that appellant could continue to work full duty.

On April 5, 2018

In a June 4, 2018 report, Dr. Zboinski provided an assessment of appellant’s right
foot/ankle condition which was similar to his previous assessments. He diagnosed right foot pain,
post-traumatic arthritis of the right ankle, and unspecified sprain of the right foot. Dr. Zboinski
recommended surgical excision of the metatarsal bossing/exostosis of appellant’s right foot and
requested that OWCP provide authorization for such surgery. He noted, “Based upon the history
as provided by the patient, the subjective complaints, and the objective ﬁndings, it is within a
reasonable degree of podiatric medical certainly that the above[-]noted diagnoses are causally
related to the [September 12, 2015] accident….”4 The request for right foot surgery was made on
July 10, 2018.
In a July 11, 2018 development letter, OWCP requested that appellant submit additional
evidence in support of his request for authorization of right foot surgery, including a physician’s
rationalized medical opinion on the issue of causal relationship between the September 12, 2015
employment injury and the proposed surgery. It afforded him 30 days to submit such evidence.
Appellant subsequently submitted an April 20, 2018 MRI scan of his right foot/ankle which
indicated that the bone marrow signal of the osseous structures of his right foot was intact without
occult fracture or bone marrow edema/contusion. The scan listed an impression of no acute bony
or ligamentous findings and intact anterior talofibular ligament.
In a July 25, 2018 report, Dr. Zboinski discussed the September 12, 2015 employment
injury and advised that, when he first examined appellant, he exhibited enlargement of the medial
cuneiform area of his right foot with pain upon direct palpation.5 He noted that appellant had
denied injury to that area of his right foot either before or after suffering the September 12, 2015
injury. Dr. Zboinski opined that the September 12, 2015 employment incident was, within a
reasonable degree of podiatric medical certainty, the cause of appellant’s right foot pain and the
diagnosed conditions of unspecified ligament sprain of the right ankle and unspecified sprain of
the right foot. He further indicated that appellant recently underwent a right foot MRI scan which
demonstrated no significant pathology and he explained that a ligamentous sprain of the right foot
can lead to palpable enlargement of the peri-joint area of the right foot. Dr. Zboinski noted, “This
can slowly develop over [two] years and would be considered somewhat degenerative in nature.
The area has not progressed to the point where it’s appreciable on MRI [scan] evaluation.”
Dr. Zboinski maintained that surgical intervention was warranted in order to remodel appellant’s
right foot and allow him to wear a shoe with less pain. He advised that appellant only had pain
and enlargement in his right foot and noted that there were no preexisting conditions contributing
to his right foot pain. Dr. Zboinski indicated, “Again, this is related to the accident of
September 12, 2015.”
4
Dr. Zboinski opined that the September 12, 2015 accident was a competent producing cause for appellant’s
clinical presentation, his complaints were consistent with the history of injury, and his history of injury was consistent
with the objective ﬁndings.
5
Dr. Zboinski observed that appellant currently had palpable enlargement of the first metatarsocuneiform and
cuneiform navicular areas of his right foot.

3

In July 2018 OWCP referred appellant’s case to Dr. Ari Kaz, a Board-certified orthopedic
surgeon serving as an OWCP district medical adviser (DMA). It requested that he provide an
opinion regarding whether the proposed right foot surgery was necessitated by appellant’s
September 12, 2015 employment injury.
In an August 6, 2018 report, the DMA noted that, although Dr. Zboinski had opined that
appellant’s right foot pain was due to midfoot osteophytes occurring over time due to the
September 12, 2015 employment injury, an October 21, 2015 MRI scan showed slight arthrosis of
the dorsolateral second TMT joint of the right foot, indicating that TMT arthritis was already
present by the date of the scan. He also noted that Dr. Itingen had reported that x-rays from
November 12, 2015 showed TMT spurring in the right foot. The DMA opined that diagnostic
studies from within two months of the September 12, 2015 injury both indicate the presence of
TMT arthrosis and dorsal TMT spurring and therefore these studies directly refuted the opinion of
Dr. Zboinski, who asserted that the spurring developed over a two-year period after the injury.
Moreover, although Dr. Zboinski indicated that appellant’s right foot problem was degenerative
in nature, the April 20, 2018 MRI scan made no mention of a degenerative process.
The DMA further maintained that, if the right foot spurring was due to a degenerative
process significant enough to cause pain severe enough to warrant surgical intervention, one would
expect marrow edema or some other evidence of arthritis in the diagnostic studies. However, there
was no evidence of record supporting the existence of marrow edema or arthritis in appellant’s
right foot. The DMA advised that the April 20, 2018 MRI scan interpretation made no mention of
marrow edema or a degenerative process, and that it showed no evidence of inflammation, edema,
or bruising in the midfoot. He indicated that, for these reasons, the medical evidence of record did
not support that the surgical intervention proposed by Dr. Zboinski was necessitated by the
accepted employment injury. Moreover, the evidence did not support that the employment injury
was “a source of pain significant enough that excision will provide symptomatic relief.” The DMA
concluded that the proposed surgery “is not medically indicated, and is not causally related to the
work injury of [September 12, 2015].”
By decision dated August 8, 2018, OWCP exercised its discretion and denied appellant’s
request for authorization of right foot surgery. It found that the weight of the medical evidence
with respect to this matter rested with the well-rationalized opinion of the DMA. OWCP further
noted that Dr. Zboinski had not provided a rationalized medical opinion regarding causal
relationship between the September 12, 2015 employment injury and the proposed surgery.
LEGAL PRECEDENT
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.”6

6

5 U.S.C. § 8103.

4

The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.7 The only limitation on OWCP’s authority is that
of reasonableness.8 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.9 In order to be entitled to reimbursement
of medical expenses, it must be shown that the expenditures were incurred for treatment of the
effects of an employment-related injury or condition.10 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.11
ANALYSIS
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization of right foot surgery.
On June 4, 2018 Dr. Zboinski recommended surgical excision of the metatarsal
bossing/exostosis of appellant’s right foot and requested that OWCP provide authorization for such
surgery. The Board finds that OWCP correctly exercised its discretion and denied appellant’s
request for authorization of such right foot surgery. OWCP properly found that the weight of the
medical evidence with respect to this matter rested with the well-rationalized opinion of the DMA.
In an August 6, 2018 report, the DMA found that the proposed surgery was not necessitated by the
September 12, 2015 employment injury.12
In his August 6, 2018 report, the DMA noted that although Dr. Zboinski opined that
appellant’s right foot pain was due to midfoot osteophytes occurring over time due to the
September 12, 2015 employment incident, diagnostic studies from October and November 2015
showed that TMT arthritis was already present by the time of the September 12, 2015 employment
injury. He further explained that, although Dr. Zboinski indicated that appellant’s right foot
problem was degenerative in nature, an April 20, 2018 MRI scan made no mention of a
degenerative process. The DMA maintained that, if the right foot spurring was due to a
degenerative process significant enough to cause pain severe enough to warrant surgical
intervention, one would expect marrow edema or some other evidence of arthritis in the diagnostic
studies. However, there was no evidence of record supporting the existence of marrow edema or
arthritis in appellant’s right foot. The DMA concluded that the medical evidence of record did not
support that the surgical intervention proposed by Dr. Zboinski was necessitated by the accepted

7

R.C., Docket No. 18-0612 (issued October 19, 2018); Vicky C. Randall, 51 ECAB 357 (2000).

8

B.L., Docket No. 17-1813 (issued May 23, 2018); Lecil E. Stevens, 49 ECAB 673, 675 (1998).

9

S.W., Docket No. 18-1529 (issued April 19, 2019); Rosa Lee Jones, 36 ECAB 679 (1985).

10

J.R., Docket No. 17-1523 (issued April 3, 2018); Bertha L. Arnold, 38 ECAB 282, 284 (1986).

11

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

12
It is noted that OWCP accepted appellant’s claim for sprain of an unspecified ligament of the right ankle and
unspecified sprain of the right foot.

5

September 15, 2015 employment injury.13 The Board notes that the weight of the medical
evidence with respect to the proposed right foot surgery rests with the opinion of the DMA because
his opinion is supported by adequate medical rationale.14
The Board further notes that Dr. Zboinski’s reports merely contain conclusory opinions of
an employment-related need for right foot surgery without the necessary rationale explaining how
the accepted September 12, 2015 employment injury, a soft-tissue injury, was sufficient to
necessitate the proposed surgery. Dr. Zboinski’s reports are of limited probative value on the
underlying issue of this case as the Board has held that such conclusory opinions are insufficient to
meet a claimant’s burden of proof to establish a claim.15 Although Dr. Zboinski indicated in his
July 25, 2018 report that appellant had no right foot problems prior to September 12, 2015, he did
not explain how this opinion was supported by the evidence of record, including the diagnostic
studies of appellant’s right foot. He posited that appellant developed some type of degenerative
condition due to the accepted September 12, 2015 employment injury which necessitated right foot
surgery, but his comments in this regard are vague and lack a rationalized medical explanation of
how such a process could have occurred due to the employment injury. On appeal, counsel argues
that Dr. Zboinski’s reports show that the proposed right foot surgery was necessitated by the
September 12, 2015 injury, but the Board has explained the deficiencies of these reports.
As noted above, abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts.16 For the above-noted reasons, the Board finds that
OWCP’s denial of appellant’s request for authorization of right foot surgery was reasonable and
did not constitute an abuse of discretion.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization of right foot surgery.

13

As previously noted, appellant’s claim has only been accepted for right foot and ankle sprains. It has not been
accepted for any bone or degenerative condition.
14

See W.C., Docket No. 18-1386 (issued January 22, 2019) (regarding the importance, when assessing medical
evidence, of such factors as a physician’s knowledge of the facts and medical history, and the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion).
15

J.D., Docket No. 14-2061 (issued February 27, 2015).

16

See supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the August 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2019
Washington, DC

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

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

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

7