United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Appleton, WI, Employer
__________________________________________

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

Docket No. 19-0164
Issued: November 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 31, 2018 appellant filed a timely appeal from a May 31, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On September 10, 2014 appellant, then a 47-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that he sustained emotional conditions, including post-traumatic stress
disorder, anxiety disorder, and depressive disorder, due to various incidents and conditions at his

1

5 U.S.C. § 8101 et seq.

workplace.2 He maintained that his condition was caused by an incident that was not handled
properly by management. Appellant stopped work on June 14, 2014.
In a development letter dated September 23, 2014, OWCP requested that appellant submit
additional factual and medical evidence in support of his emotional condition claim. It afforded
him 30 days to submit the requested evidence.
In response, appellant submitted statements prepared in October 2014 in which he alleged
that he sustained stress because a coworker, L.C., falsely accused him on June 11, 2010 of having
placed poison or some other harmful substance in her drink. He claimed that he was performing
his regular work duties when L.C. made the false accusation. Appellant maintained that she
attempted to have him arrested and later confessed that she had made a false accusation. He
asserted that management did not properly investigate the June 11, 2010 incident and failed to
properly discipline L.C., resulting in L.C. returning to the same work unit where he worked in
2013.3
Appellant submitted a statement he prepared on July 7, 2010, as well as July 7, 2010
statements from coworkers, which contained similar content. The statements indicated that there
was no support for L.C.’s assertion that a harmful substance had been placed in her drink at work.
Appellant also submitted medical evidence in support of his claim, including reports of
Dr. Yazmin Fuentes, a Board-certified psychiatrist.
In a September 23, 2014 letter, an employing establishment official challenged appellant’s
emotional condition claim and argued that there was “[n]o fact of injury or causal relationship
established medically.”
In a development letter dated February 4, 2015, OWCP requested that the employing
establishment respond to appellant’s assertions. It afforded the employing establishment 30 days
to reply. In February 27, 2015 statements, V.G. and D.B., superiors of appellant, asserted that the
June 11, 2010 incident was adequately investigated, that all disciplinary actions relating to it were
appropriately carried out, and that appellant’s transfer requests were properly handled. Both V.G.
and D.B. acknowledged that L.C. had claimed that someone tampered with her drink at work.
V.G. indicated that a union official had advised that L.C. accused appellant of placing something
in her drink.
By decision dated March 19, 2015, OWCP denied appellant’s emotional condition claim.
It determined that he had not submitted sufficient evidence to establish a compensable employment
factor. OWCP found that appellant had not provided sufficient details and corroborating evidence
regarding his allegations.
On April 7, 2015 appellant requested a review of the written record with a representative
of OWCP’s Branch of Hearings and Review. He provided a statement, which was similar to those
previously considered, and provided additional medical evidence.

2

Appellant also claimed an elevated cholesterol condition due to stress from work.

3

Appellant asserted that management mishandled his requests to be transferred away from the work unit.

2

By decision dated September 25, 2015, OWCP’s hearing representative affirmed the
March 19, 2015 decision. She determined that appellant had not established a compensable
employment factor.
On September 20, 2016 appellant, through his then-counsel, requested reconsideration of
the September 25, 2015 decision. He submitted additional medical reports and statements from
family members, which described the June 11, 2010 incident and the impact it had on him as well
as noting management’s response. By decision dated December 6, 2016, OWCP denied
modification of the September 25, 2015 decision.
On November 27, 2017 appellant, through his then-counsel, again requested
reconsideration of the December 6, 2016 decision. In a November 21, 2017 brief, counsel argued
that the June 11, 2010 incident, and the employing establishment’s mishandling of it, constituted
compensable employment factors. Appellant submitted an August 29, 2016 report in which
Dr. Natalie A. Krah, a Board-certified psychiatrist, discussed his emotional condition.
By decision dated May 31, 2018, OWCP denied modification of the December 6, 2016
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
4

Supra note 1.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
7
See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.8 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.9
A claimant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.10 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.11
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.12 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence.13
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant alleged that he sustained an emotional condition due to various incidents and
conditions at work. OWCP denied his claim finding that he had not established compensable
employment factors. Therefore, the Board must initially review whether these alleged incidents
and conditions are covered employment factors under the terms of FECA. The Board notes that
appellant claimed that, while he was performing his regular duties, L.C., a coworker, falsely
accused him of placing a hazardous substance in her drink on June 11, 2010 and he asserted that,
therefore, he had established a compensable employment factor under the principles of Lillian

8

Lillian Cutler, 28 ECAB 125 (1976).

9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

11

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

12

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13

Id.

4

Cutler.14 Appellant also claimed that management committed error and abuse with respect to
various administrative/personnel matters.
Appellant has made a number of statements regarding the June 11, 2010 incident and
asserted that it is a compensable employment factor because the incident occurred while he was
performing his regular duties at work. The employing establishment has acknowledged that L.C.
had in fact made a false accusation on June 11, 2010, but the case record remains vague with
respect the precise nature of the accusation and the circumstances under which it was made. The
employing establishment indicated that the June 11 2010 incident was investigated, but it did not
provide a detailed discussion of the investigation, which would clarify the nature of the incident.
Given the limited evidence from the employing establishment in the case record regarding the
nature of the June 11, 2010 incident, the Board is not currently able to make a reasoned
determination regarding whether the incident is sufficiently related to appellant’s regular or
specially assigned duties to constitute a compensable employment factor.
With respect to administrative or personnel matters, appellant claimed that management
mishandled the investigation of the June 11, 2010 incident and had not properly disciplined L.C.
with respect to the false accusation made against him on June 11, 2010. He also claimed that
management improperly allowed L.C. to return to work in his work unit. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially-assigned work
duties of the employee and are not covered under FECA.15 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.16 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably.17
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. There is no indication that he filed a
grievance with the employing establishment regarding these matters or otherwise obtained a final
determination from an administrative body showing that the employing establishment committed
error or abuse. Although appellant expressed dissatisfaction with the actions of superiors, the
Board has held that mere dislike or disagreement with certain supervisory actions will not be
compensable absent error or abuse on the part of the supervisor.18 Appellant did not substantiate
error or abuse committed by the employing establishment in the above-noted matters and,
therefore, he has not established a compensable employment factor with respect to administrative
or personnel matters.

14

See Lillian Cutler, supra note 8.

15

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
16

S.K., Docket No. 18-1648 (issued March 14, 2019); William H. Fortner, 49 ECAB 324 (1998).

17

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

18

T.C., Docket No. 16-0755 (issued December 13, 2016).

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Under FECA, although it is the burden of an employee to establish his or her claim, OWCP
also has a responsibility in the development of the factual evidence, particularly when such
evidence is of the character normally obtained from the employing establishment or other
government source.19
On remand in order to ensure a comprehensive and well-reasoned consideration of
appellant’s emotional condition claim, OWCP should request that the employing establishment
provide additional evidence regarding the specific nature of June 11, 2010 incident. After carrying
out such development, it shall issue a de novo decision regarding appellant’s emotional condition
claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision of the Board.
Issued: November 13, 2019
Washington, DC

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

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

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

19

Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Montgomery, AL, Employer
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__________________________________________ )
J.A., Appellant

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

Docket Nos. 16-1621 &
16-1622
Issued: May 12, 2017

Case Submitted on the Record

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

JURISDICTION
On August 9, 2016 appellant, through counsel, filed timely appeals from two merit
decisions of the Office of Workers’ Compensation Programs (OWCP). One appeal was from an
April 22, 2016 merit decision under OWCP File No. xxxxxx275, assigned Docket No. 16-1621
and the other appeal was from a May 5, 2016 merit decision under OWCP File No. xxxxxx825,
assigned Docket No. 16-1622. Pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE -- OWCP FILE NO. xxxxxx275
The issue is whether appellant met his burden of proof to establish ratable permanent
impairment of his right fifth finger, warranting a schedule award.
On appeal, counsel contends that OWCP’s April 22, 2016 decision is contrary to fact and
law.
FACTUAL HISTORY – OWCP FILE NO. xxxxxx275
On December 22, 2003 appellant, then a 44-year-old criminal investigator/deputy
marshal, filed a traumatic injury claim (Form CA-1) assigned File No. xxxxxx275 alleging that
on that date he sustained right hand and little finger injuries when a shelf fell while he was
arranging ammunition boxes in a weapons vault. He heard a ripping sound and experienced
immediate swelling of his right little finger as it was pulled away from his right hand.
A hospital report dated December 22, 2003 bearing an unknown signature from a medical
provider who indicated a history of injury that on that date appellant sustained a right little finger
injury when a box of ammunition fell on his right hand. The report noted a diagnosis of sprain of
the right fifth finger metacarpophalangeal (MCP) radiating with pain.
On June 9, 2015 appellant filed a claim for a schedule award (Form CA-7). No new
evidence was submitted along with the claim.
On June 25, 2015 OWCP accepted appellant’s claim for sprain of the right fifth finger.
In a letter of the same date, it advised him of the deficiencies of his schedule award claim and
requested that he submit a medical report from his treating physician establishing that the
accepted condition had attained maximum medical improvement (MMI), and providing an
impairment rating according to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter, the A.M.A., Guides).3
In a July 17, 2015 medical report, Dr. Lawrence T. Williams, an attending family
practitioner and internist, noted that he had examined appellant on February 8, 2015. He
indicated that appellant related a history of injury that he had a painful right fifth finger condition
and diagnosed a strain. Dr. Williams related that apparently appellant had a tear of the ligature
in his hand that caused the finger to be in an attitude of adduction with weakness. He maintained
that appellant apparently tore this ligature while moving ammunition boxes from shelving that
fell and caused his injury. Dr. Williams advised that it seemed appellant had reached MMI and
concluded that at most he had five percent permanent impairment.
By decision dated July 28, 2015, OWCP denied appellant’s schedule award claim. It
found that he did not submit any medical evidence in response to its June 25, 2015 development
letter.

3

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

2

On July 31, 2015 appellant requested a telephone hearing with an OWCP hearing
representative, which was held on March 8, 2016.
During the March 8, 2016 telephone hearing, appellant described his December 22, 2003
employment injury, current symptoms, and medical treatment. Dr. Williams testified that he had
reviewed his medical records, which indicated that appellant had a right hand injury with
separation of the small finger into a permanent abduction with weakness in the right small finger.
He reiterated his opinion that appellant sustained a tear in his hand and right small finger when
ammunition boxes fell off a shelf. Dr. Williams related that he could not determine the extent of
his permanent impairment at the time of the hearing. The hearing representative requested that
he provide an impairment rating based on the A.M.A., Guides.
Following the March 8, 2016 hearing, OWCP received copies from appellant of pages
from the sixth edition of the A.M.A., Guides, which included Table 15-2, Digital Regional Grid,4
Table 15-9 regarding clinical studies adjustments for upper extremities,5 and Table 15-10,
Methodology for Determining the Grade in an Impairment Class.6
In an April 22, 2016 decision, an OWCP hearing representative affirmed the July 28,
2015 decision. He found that Dr. Williams’ July 17, 2015 impairment rating of five percent was
speculative. The hearing representative also found that he did not provide objective findings in
accordance with the sixth edition of the A.M.A., Guides to support his impairment rating.
ISSUE -- OWCP FILE NO. xxxxxx825
The issue is whether appellant met his burden of proof to establish ratable permanent
impairment of his left elbow, warranting a schedule award.
On appeal, counsel contends that OWCP’s May 5, 2016 decision is contrary to fact and
law.
FACTUAL HISTORY -- OWCP FILE NO. xxxxxx825
On July 31, 2007 appellant filed a (Form CA-1) assigned File No. xxxxxx825 alleging
that on July 20, 2007 he sustained a left elbow injury when he struck it twice on a billiard table
in a living room.
In reports dated October 5, 17, and 23, 2007, Dr. George D. Walcott, Jr., a Boardcertified orthopedic surgeon, and Dr. Williams noted a history that on July 20, 2007 appellant
was involved in an altercation while arresting a fugitive. Appellant struck his left olecranon on
the floor or pool table. The physicians examined appellant, diagnosed left olecranon bursitis,
and recommended surgery. Dr. Walcott opined that the diagnosed condition was caused by the
July 20, 2007 incident.
4

Id. at 394.

5

Id. at 410.

6

Id. at 412.

3

On November 2, 2007 OWCP accepted appellant’s claim for left olecranon bursitis. It
authorized a left olecranon bursectomy performed by Dr. Walcott on November 8, 2007.7
In a January 7, 2008 report, Dr. Walcott examined appellant’s left elbow. He reported
full range of motion of the elbow. There was no drainage, redness, or tenderness. Appellant had
a little bit of swelling that looked like normal postoperative swelling. Dr. Walcott provided an
impression of left olecranon bursitis two months status post bursectomy with some initial
drainage in the postoperative period now resolved after oral antibiotics. Based on his
examination findings, he released appellant to full duty with no restrictions. Dr. Walcott advised
that appellant had no permanent impairment. He concluded that appellant had reached MMI as
of the date of his examination.
On June 9, 2015 appellant filed a Form CA-7 claim for a schedule award. No new
evidence was submitted along with the claim.
By letter dated June 22, 2015, OWCP advised appellant of the deficiencies of his claim
and requested a medical report from his treating physician assessing his permanent impairment
based on the sixth edition of the, A.M.A., Guides and establishing that he had reached MMI.
In a July 17, 2015 report, Dr. Williams noted that he had examined appellant on
July 8, 2015. He also noted that appellant sustained left olecranon bursitis as a result of his
July 20, 2007 work injury. Dr. Williams reviewed appellant’s medical treatment and advised
that he had reached MMI on April 7, 2008, approximately 18 months after his work injury. He
reported that appellant still had pain in his left elbow and pain with full extension of the elbow.
Dr. Williams also reported that appellant had no preexisting condition of pain or impairment of
the left elbow prior to his injury. He concluded that appellant had 10 percent permanent
impairment of his left elbow based on his subjective pain experience with the use of the elbow.
By decision dated July 28, 2015, OWCP denied appellant’s schedule award claim. It
found that he did not submit any medical evidence in response to its June 22, 2015 development
letter.
On July 31, 2015 appellant requested a telephone hearing with an OWCP hearing
representative, which was held on March 8, 2016.8
During the March 8, 2016 telephone hearing, appellant testified that he hurt his right
elbow and experienced pain subsequent to his employment-related left elbow injury.
Dr. Williams testified that appellant had swelling and pain in his bursa. He noted that he would
have to examine appellant and utilize the sixth edition of the A.M.A., Guides to determine the
extent of impairment to his left elbow.
Following the March 8, 2016 hearing, OWCP received an undated report from
Dr. Williams, in which he reiterated findings and his diagnosis of left olecranon bursitis from his
7

Appellant returned to work on November 19, 2007.

8

The Board notes that the March 8, 2016 telephone hearing was held separately from the previous telephone held
on the same date in appellant’s claim assigned File No. xxxxxx275.

4

July 17, 2015 report. Dr. Williams noted that he had no medical records regarding appellant’s
claim of impairment to his right elbow. He found a class 1 diagnosis-based impairment (DBI)
Class of Diagnosis (CDX) for left olecranon bursitis. Dr. Williams assigned a grade modifier 2
for Functional History (GMFH), grade modifier 2 for Physical Examination (GMPE), and grade
modifier 1 for Clinical Studies (GMCS). He applied the net adjustment formula of (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX), or (2-1) + (2-1) + (1-1), which yielded a grade
adjustment of 2, resulting in a grade E impairment.
In an April 2, 2016 report, Dr. Williams again noted a history of the accepted July 20,
2007 left elbow injury, appellant’s medical treatment, and diagnosis of left olecranon bursitis.
He also noted that appellant was retired. Dr. Williams reported that his functional history
included residual pain, scarring, and an ability to move his elbow appropriately with some pain
and weakness. On physical examination he found a six-centimeter scar from the left olecranon
process. Dr. Williams reported that clinical studies revealed that appellant required surgical
removal of his bursa with shaving of the olecranon bony traumatic growth. Referring to Table
15-4, page 398 of the sixth edition of the A.M.A., Guides, he again found a class 1 DBI for the
diagnosis of left olecranon bursitis. Dr. Williams again assessed grade modifiers 2 for GMFH
and GMPE and grade modifier 1 for GMCS, which yielded a grade E or three percent whole
person impairment. He noted that the calculated total whole person impairment was 47 percent.
In a May 5, 2016 decision, the prior OWCP hearing representative affirmed the July 28,
2015 decision. He found that Dr. Williams’ reports did not provide objective findings in
accordance with the sixth edition of the A.M.A., Guides to support his left elbow impairment
ratings, particularly in light of Dr. Walcott’s January 7, 2008 opinion that appellant had no
permanent impairment.
LEGAL PRECEDENT -- OWCP FILE NO. xxxxxx275 and xxxxxx825
The schedule award provision of FECA9 and its implementing federal regulations set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.10 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.11 For decisions issued
after May 1, 2009, the sixth edition is used to calculate schedule awards.12

9

5 U.S.C. § 8107.

10

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

11

K.H., Docket No. 09-341 (issued December 30, 2011).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).

5

The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health. For
lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition CDX, which is then adjusted by grade modifiers based on GMFH, GMPE, and
GMCS.13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
Evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.15
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member as a result of any employment injury.16 OWCP procedures
provide that, to support a schedule award, the file must contain competent medical evidence,
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this date occurred (date of MMI), describe the impairment in sufficient detail so that it
can be visualized on review and computes the percentage of impairment in accordance with the
A.M.A., Guides.17
ANALYSIS -- OWCP FILE NO. xxxxxx275
OWCP accepted that appellant sustained a right fifth finger sprain on December 22, 2003
while in the performance of duty in his claim assigned File No. xxxxxx275. In decisions dated
July 28, 2015 and April 22, 2016, it denied his claim for a schedule award.
The Board finds that appellant has not met his burden of proof to establish entitlement to
a schedule award for his accepted right fifth finger condition.
In a July 17, 2015 report, Dr. Williams, an attending physician, found that it “seemed”
that appellant had reached MMI and at most he had five percent impairment. His opinion on the
issue of whether appellant had reached MMI is speculative in nature.18 Moreover, Dr. Williams
did not cite to any Tables or pages in the sixth edition of the A.M.A., Guides to support his rating
or otherwise explain his determination.19 The Board notes that he opined that appellant had
“apparently” torn the ligature in his right hand due to the accepted employment injury.
Dr. Williams’ diagnosis is speculative in nature.20 Further, the Board notes that OWCP has not
accepted torn ligament of the right hand as employment related. For conditions not accepted by
13

Supra note 4 at 493-531.

14

Id. at 521.

15

R.V., Docket No. 10-1827 (issued April 1, 2011).

16

A.A., Docket No. 16-41 (issued February 11, 2016); Tammy L. Meehan, 53 ECAB 229 (2001).

17

Supra note 13 at Chapter 2.808.5 (February 2013).

18

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A.
Kelley, 55 ECAB 206 (2004).
19

See Mary L. Henninger, 52 ECAB 408 (2001).

20

Supra note 19.

6

OWCP as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation, not OWCP’s burden to disprove such
relationship.21 Dr. Williams did not provide any medical rationale explaining how appellant’s
torn ligament of the right hand was caused or aggravated by the accepted December 22, 2003
employment injury. The Board has held that a medical opinion not fortified by rationale is of
diminished probative value.22
Appellant submitted copies of pages from the sixth edition of the A.M.A., Guides, which
discussed the process for rating impairment of a digit and upper extremities. This evidence does
not provide a physician’s medical opinion regarding whether appellant had reached MMI and
whether he had any permanent impairment of his right finger due to his accepted employment
injury under the sixth edition of the A.M.A., Guides.
As stated, it is appellant’s burden of proof to establish that he sustained permanent
impairment of a scheduled member as a result of an employment injury.23 He did not submit
such evidence and thus, he did not meet his burden of proof in his claim assigned File No.
xxxxxx275.24
On appeal, counsel contends that OWCP’s April 22, 2016 decision is contrary to fact and
law. For the reasons stated above, the Board finds that counsel’s contentions are not
substantiated.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
ANALYSIS -- OWCP FILE NO. xxxxxx825
The Board notes that under File No. xxxxxx825, OWCP accepted appellant’s claim for
left olecranon bursitis due to a July 20, 2007 employment-related injury. In decisions dated
July 28, 2015 and May 5, 2016, it denied his claim for a schedule award.
The Board finds that the case is not in posture for decision regarding appellant’s left
elbow impairment.
Appellant submitted medical reports dated July 17, 2015 and April 2, 2016 and an
undated report from Dr. Williams. In the July 17, 2015 report, Dr. Williams found that appellant
sustained left olecranon bursitis as a result of the July 20, 2007 work injury, reached MMI on
April 7, 2008, and had 10 percent permanent impairment of the left elbow. In the April 2, 2016
21

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
22

Cecilia M. Corley, 56 ECAB 662 (2005).

23

See cases cited supra note 17.

24

L.F., Docket No. 10-0343 (issued November 29, 2010); V.W., Docket No. 09-2026 (issued February 16, 2010).

7

and undated reports, he reiterated his prior diagnosis of work-related left olecranon bursitis and
that appellant had reached MMI as of April 7, 2008. He applied relevant tables of the sixth
edition of the A.M.A., Guides and determined that appellant had three percent whole person
impairment of the left upper extremity. Dr. Williams noted that the calculated total whole person
impairment was 47 percent.
While Dr. Williams offered different impairment ratings of the left elbow, OWCP may
rely on the opinion of an OWCP district medical adviser (DMA) to apply the A.M.A., Guides to
the findings reported by the attending physician.25 OWCP procedures provide that in a claim for
a schedule award, if the medical evidence indicates MMI has been reached and describes the
permanent partial impairment of the affected member in accordance with the current edition of
the A.M.A., Guides, the case should be referred to the DMA for review.26 In this case, however,
it did not refer Dr. Williams’ July 17, 2015, April 2, 2016, and undated reports to a DMA for
review of a permanent impairment. In his May 5, 2016 decision, an OWCP hearing
representative found that his medical reports did not provide any objective findings and
concluded that the medical evidence did not establish permanent impairment of the left elbow.
The hearing representative, however, made a medical determination without the benefit of
medical advice or review by OWCP’s DMA that appellant’s injury did not cause or contribute to
any permanent impairment of the left elbow.27 OWCP procedures provide that, after obtaining
all necessary medical evidence, the file should be routed to the DMA for an opinion concerning
the nature and percentage of any impairment in accordance with the A.M.A., Guides.28
However, OWCP did not forward this medical evidence to the DMA for review.
Once OWCP undertakes development of the record it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.29 Despite having
submitted medical evidence in support of his schedule award claim, OWCP failed to develop the
evidence as appellant’s case record was not referred to a DMA for review for a determination on
whether MMI had been reached and the percentage of permanent partial impairment of the left
elbow.30
For these reasons, the May 5, 2016 decision will be set aside and the case remanded to
OWCP for review of the medical record by OWCP’s DMA. If the DMA is unable to render a
reasoned opinion fully explaining the application of the A.M.A., Guides, OWCP shall refer
appellant to an appropriate Board-certified specialist for a second opinion regarding the extent of

25

See Linda Beale, 57 ECAB 429 (2006).

26

Supra note 13 at Chapter 2.810.8(i) (September 2010).

27

J.C., Docket No. 13-0195 (issued April 3, 2013).

28

See supra note 13 at Chapter 2.808.6(f) (February 2013).

29

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of
Lionel F. Richard, 53 ECAB 430 (2002); William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB
699 (1985).
30

Supra note 27; J.G., Docket No. 09-1714 (issued April 7, 2010).

8

his left elbow extremity impairment.31 Following such development as OWCP deems necessary,
it shall issue a de novo decision on appellant’s schedule award claim.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable
permanent impairment of his right fifth finger, entitling him to a schedule award under File No.
xxxxxx275. The Board further finds, however, that the case is not in posture for decision as to
whether appellant has ratable permanent impairment of his left elbow, entitling him to a schedule
award under File No. xxxxxx825.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2016 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with the decision of the Board. The April 22, 2016 decision of OWCP is affirmed.
Issued: May 12, 2017
Washington, DC

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

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

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

31

If the medical evidence does not contain the required elements for a schedule award impairment calculation, the
claims examiner should request such information from the attending physician prior to a DMA review. If the
attending physician does not submit the requested information, the claims examiner should obtain the evidence
through a second opinion evaluation prior to a DMA review. Supra note 27.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, POSTAL
INSPECTION SERVICE, BROOKLYN
GENERAL MAIL FACILITY, Brooklyn, NY,
Employer
__________________________________________

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

Docket No. 10-480
Issued: October 14, 2010

Case Submitted on the Record

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

JURISDICTION
On December 10, 2009 appellant filed a timely appeal from a June 17, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying reconsideration. There is
no merit decision of record issued within 180 days of December 10, 2009 the date appellant filed
his appeal with the Board. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board does not have
jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review
under 5 U.S.C. § 8128.
On appeal, appellant asserted that reports from mandatory periodic fitness-for-duty
examinations gave the employing establishment timely actual notice of the claimed lumbar
condition.

FACTUAL HISTORY
On December 28, 2004 appellant, then a 54-year-old retired postal inspector, filed a
notice of occupational disease (Form CA-2) claiming that he sustained degenerative lumbar disc
disease with lower extremity paresthesias in the performance of duty. He attributed his lumbar
condition to several work factors: his general work environment from 1978 through his
retirement on January 3, 2002; a physical fitness program; heavy lifting and carrying from
November 1983 to February 1996 while on an undercover team; a March 23, 1991 occupational
motor vehicle accident claimed under File No. xxxxxx731;1 weapons training from May 1992 to
June 2001; a February 26, 1993 explosion; surveillance from February 1996 to January 2002;
sorting packages in an unheated airplane hangar from December 23, 1999 to January 6, 2000;
bending, lifting, stooping, carrying and stair climbing on September 20 and November 13, 2001.
Appellant stated that he was first aware of the conditions on March 23, 1991 and first related
them to his federal employment on June 1, 2001.
In January 12 and August 18, 2005 letters, the employing establishment contended that
appellant’s claim was not timely filed within the three-year time limitation of section 8122 of the
Federal Employees’ Compensation Act.2
Appellant submitted medical evidence from several attending physicians. On March 28,
1991 Dr. Peter Lesniewski, an attending Board-certified surgeon, opined that the March 23, 1991
car accident caused acute cervical and lumbosacral sprains. On January 7, 1992 he
recommended physical therapy. In an April 19, 2001 report, Dr. John Keleman, an attending
Board-certified neurologist, noted appellant’s complaints of back and foot pain after sorting
packages at work in December 1999. He ordered a June 1, 2001 lumbar magnetic resonance
imaging (MRI) scan which showed degenerative disc disease. Dr. Keleman diagnosed bilateral
L5-S1 radiculopathy.3 In a July 12, 2004 report, Dr. Frederic A. Mendelsohn, an attending
Board-certified neurologist, noted appellant’s account of foot and back pain after unloading
parcels in 1999.4 On August 9, 2005 he diagnosed sciatica secondary to a herniated L5-S1 disc,
substantially worsened by diabetic polyneuropathy.
Appellant also submitted reports of periodic physical examinations performed by contract
physicians for the employer. A November 15, 1995 report noted his account of “job related”
foot paresthesias and back pain. A May 12, 1999 report explained that appellant attributed
paresthesias of both hands and his left foot to a March 1991 motor vehicle accident. May 14 and
August 22, 2001 reports again noted his account of back pain and bilateral foot paresthesias since
1

The nature and duration of any accepted injuries sustained in the March 23, 1991 accident is not of record on the
present appeal.
2

5 U.S.C. § 8122.

3

A May 31, 2001 MRI scans showed degenerative disc disease at L5-S1 with left L5 nerve root impingement.

4

Dr. Mendelsohn ordered a January 5, 2005 lumbar MRI scan which showed bilateral L5-S1 foraminal stenosis
with a small left-sided disc herniation. A January 11, 2005 nerve conduction velocity (NCV) test of the lower
extremities showed bilateral L5-S1 radiculopathy and moderate to severe bilateral sensorimotor polyneuropathy
consistent with diabetes.

2

1991. Dr. Mendelsohn recommended that appellant consult his own physician if the symptoms
were “persistent or bothersome.”5
By decision dated October 4, 2005, the Office denied appellant’s claim on the grounds
that it was not timely filed under the three-year time limitation of section 8122 of the Act. Also,
there was no evidence that the employing establishment had actual knowledge that he sustained
degenerative lumbar disc disease within 30 days of any of the alleged incidents.
In an October 21, 2005 letter, appellant requested reconsideration. He asserted that he
continued to be exposed to injurious work factors through January 3, 2002 within three years of
filing the claim on December 28, 2004.
On December 27, 2005 the Office held a teleconference with appellant’s last two
supervisors. Both officials recalled that from December 28, 2001 to January 3, 2002, appellant
performed clerical duties, packed items from his desk, returned his official vehicle and removed
computers and documents from his domicile. He did not perform surveillance during that week.
By decision dated January 12, 2006, the Office denied modification of the October 4,
2005 decision. It found that appellant was not exposed to the identified work factors from
December 28, 2001 to January 3, 2002. Therefore the December 28, 2004 claim was not timely
filed.
In a January 4, 2007 letter, appellant requested reconsideration. He contended that the
December 28, 2004 claim should be considered timely as he filed a claim for the March 23, 1991
motor vehicle accident on March 27, 1991. Appellant asserted that his supervisor knew he
withdrew from firearms training on June 18, 2001 due to back pain. He alleged that carrying
heavy boxes from December 26, 2001 to January 3, 2002 aggravated his lumbar degenerative
disc disease. Appellant submitted a photograph showing 11 boxes of unknown size and weight.
By decision dated April 11, 2007, the Office again denied modification. It found that
appellant’s January 4, 2007 statement was inconsistent with his previous accounts. Also, the
December 19, 2005 teleconference established that he was not exposed to the identified factors
from December 28, 2001 through January 3, 2002.
In an April 5, 2008 letter, appellant requested reconsideration. He submitted a
December 7, 2001 e-mail from his supervisor confirming that he would turn in his accountable
property on January 2, 2002 and remove additional property on January 3, 2002.
By decision dated June 2, 2008, the Office denied modification on the grounds that the
new evidence did not establish that appellant filed his claim within three years of his exposure to
the implicated work factors. It noted that the fitness-for-duty reports did not constitute actual
knowledge by the employing establishment as they did not establish a work-related diagnosis.
In a May 26, 2009 letter, appellant requested reconsideration. He reiterated that the
fitness-for-duty reports gave the employing establishment timely actual notice of a lumbar
5

October 25, 1991 and April 24, 1997 reports did not mention back pain or lower extremity symptoms.

3

condition. Appellant submitted an April 17, 2001 patient checklist from a fitness-for-duty
examination in which he indicated that his back and foot symptoms were due to surveillance
activities and unloading mail from planes in 1999. He also submitted duplicates of
Dr. Keleman’s April 19, May 14 and August 22, 2001 contract physician reports.
In a June 17, 2009 decision, the Office denied reconsideration on the grounds that
appellant did not submit new, relevant argument or evidence establishing legal error by it. It
found that the April 17, 2001 checklist was of no probative value.
LEGAL PRECEDENT
To require the office to reopen a case for merit review under section 8128(a) of the Act,6
section 10.606(b)(2) of Title 20 of the Code of Federal 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) constitute relevant and
pertinent new evidence not previously considered by the Office.7 Section 10.608(b) provides
that when an application for review of the merits of a claim does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.8
In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.9 He needs only to
submit relevant, pertinent evidence not previously considered by the Office.10 When reviewing
an Office decision denying a merit review, the function of the Board is to determine whether the
Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.11
ANALYSIS
Appellant filed an occupational disease claim on December 28, 2004 for lumbar
degenerative disc disease. He attributed this condition to a variety of work factors occurring
between 1978 and January 3, 2002. Appellant contended that fitness-for-duty examination
reports gave his supervisors timely actual notice of the claimed condition. The Office denied
appellant’s claim on October 4, 2005 on the grounds that the claim was not timely filed within
three years of his last exposure to the identified work factors. Also, the record did not establish
actual notice to the employing establishment within 30 days of any of the identified incidents.
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.608(b). See also T.E.., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

9

Helen E. Tschantz, 39 ECAB 1382 (1988).

10

Id. at § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

11

Annette Louise, 54 ECAB 783 (2003).

4

Pursuant to requests for reconsideration, the Office denied modification on January 12, 2006,
April 11, 2007 and June 2, 2008.
Appellant again requested reconsideration on May 26, 2009. He repeated prior
arguments regarding actual notice and submitted medical evidence previously of record.
Appellant also submitted an April 17, 2001 patient checklist from a fitness-for-duty examination
indicting his belief that his symptoms were related to 1999 work duties and unspecified
surveillance activities. The Office denied reconsideration by a June 17, 2009 decision on the
grounds that appellant did not submit new, relevant argument or evidence or establish legal error
by the Office.
The May 26, 2009 letter is repetitive of his prior arguments which were previously
rejected. The medical reports are duplicates of previously considered evidence. While the
medical checklist is new, it is nearly identical to fitness-for-duty documents previously of record.
Evidence or argument which is duplicative or cumulative in nature is insufficient to warrant
reopening a claim for merit review.12 Thus, appellant’s letter, checklist and the medical reports
do not require reopening the record for a merit review.
On appeal, appellant contends that reports from mandatory periodic fitness-for-duty
examinations gave the employing establishment timely actual notice of the claimed lumbar
condition. As set forth above, these reports, including the April 17, 2001 checklist, were
insufficient to provide timely actual notice to the employing establishment.
Appellant has not established that the Office improperly refused to reopen his claim for a
review of the merits under section 8128(a) of the Act. He did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or submit relevant and pertinent new evidence not
previously considered by the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s May 26, 2009 request for
reconsideration.

12

Denis M. Dupor, 51 ECAB 482 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 17, 2009 is affirmed.
Issued: October 14, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
U.S. POSTAL SERVICE, NEW AUGUSTA
BRANCH, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 07-1757
Issued: January 10, 2008

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from a schedule award decision of the
Office of Workers’ Compensation Programs dated April 2, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination in this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has greater
than a three percent impairment of the right upper extremity for which he received a schedule
award.
FACTUAL HISTORY
On March 13, 2006 the Office accepted that appellant, then a 54-year-old letter carrier,
sustained an employment-related right rotator cuff tear. Appellant came under the care of
Dr. Jon M. Sieber, a Board-certified orthopedic surgeon, who performed surgical repair on

March 29, 2006. He returned to limited duty on April 18, 2006 and on September 26, 2006 filed
a schedule award claim. A functional capacity evaluation was completed on July 27, 2006.
In an August 3, 2006 report, Dr. Sieber advised that a functional capacity evaluation was
appropriate. He noted that appellant had a little bit of weakness in his shoulder girdle which
represented a nine percent upper extremity impairment. In an October 18, 2006 report,
Dr. Sieber provided an impairment rating of appellant’s right upper extremity in accordance with
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).1 He noted range of motion measurements of 160
degrees of forward elevation, 165 degrees of abduction, 90 degrees of external rotation and a 20
degree lack of symmetry of internal rotation. Dr. Sieber stated that, under the figures found on
pages 476-79 of the A.M.A., Guides, appellant had a three percent upper extremity impairment
for loss of range of motion. He stated that, while there was subjectivity of his assessment,
because of residual weakness in flexion and external rotation of the shoulder girdle as well as
residual pain, under Table 16-35, appellant would be entitled to an additional six percent upper
extremity impairment for a total nine percent impairment of the upper extremity.
The Office referred Dr. Sieber’s report to an Office medical adviser. In a February 3,
2007 report, the Office medical adviser noted Dr. Sieber’s range of motion findings. He advised
that maximum medical improvement had been reached on October 18, 2006 and that, under
Figure 16-40 of the A.M.A., Guides, appellant had a one percent impairment for flexion of 160
degrees, under Figure 16-43, a one percent impairment for abduction of 165 degrees, and that,
under Figure 16-46, appellant had a one percent impairment for 70 degrees of internal rotation
and no impairment for 90 degrees of external rotation, for a right upper extremity impairment
rating of three percent. The Office medical adviser stated that he did not agree with Dr. Sieber’s
additional impairment for strength as the A.M.A., Guides clearly states that no impairment can
be given for strength in the presence of decreased range of motion. While appellant’s external
rotation was normal, multiple therapy notes in the record demonstrated that he had more or less
normal external rotation strength and was therefore not entitled to a strength deficit for external
rotation either.
By decision dated April 2, 2007, appellant was granted a schedule award for a three
percent impairment of the right upper extremity, to run from October 18 to December 22, 2006.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act2 and section 10.404 of
the implementing federal regulations,3 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in

1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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., Guides4 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.5
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.6 Office procedures provide
that to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”), describes the impairment in sufficient
detail to include, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation, or other pertinent description of the impairment, and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for an opinion concerning the nature and percentage of
impairment, and the Office medical adviser should provide rationale for the percentage of
impairment specified.7
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
figures and tables found in the A.M.A., Guides. However, all factors that prevent a limb from
functioning normally should be considered, together with the loss of motion, in evaluating the
degree of permanent impairment.8
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.9 Section 16.4 provides that in evaluating abnormal
motion both active and passive motion measurements are necessary to evaluate the joint motion
under the appropriate charts, and these should be added to obtain the total motion impairment.10
Section 16.8a of the A.M.A., Guides provides that, in a rare case, if the examiner believes the
4

A.M.A., Guides, supra note 1.

5

See Joseph Lawrence, Jr., supra note 1; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(b-d)
(August 2002).
8

Robert V. Disalvatore, 54 ECAB 351 (2003).

9

A.M.A., Guides, supra note 1 at 433-521.

10

Id. at 451-52.

3

individual’s loss of strength represents an impairing factor that has not been considered
adequately by other methods, the loss of strength may be rated separately. An example of such
situation would be loss of strength due to a severe muscle tear that healed leaving a palpable
muscle defect. Decreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities or absence of parts that prevent effective application of maximal force in
the region being evaluated.11
ANALYSIS
The Board finds that appellant has no more than a three percent right upper extremity
impairment. In a report dated October 18, 2006, Dr. Sieber provided range of motion
measurements for appellant’s right shoulder and concluded that he had three percent impairment
due to loss of motion. Dr. Sieber’s findings of 165 degrees of abduction under Figure 16-43 of
the A.M.A., Guides, represents a one percent impairment.12 Under Figure 16-40, forward flexion
of 160 degrees yields an impairment of one percent,13 and under Figure 16-46 internal rotation of
70 degrees (or a lack of 20 degrees) and external rotation of 90 degrees yields impairments of
one and zero percent respectively.14 Dr. Sieber then properly added the loss of shoulder motion
units to conclude that appellant had three percent right upper extremity impairment due to loss of
motion.15 In a February 3, 2007 report, an Office medical adviser reviewed Dr. Sieber’s report
and agreed with his conclusion that appellant had a three percent right upper extremity
impairment due to loss of motion. While Dr. Sieber also awarded an additional six percent for
loss of strength, the Office medical adviser properly found that appellant was not entitled to an
additional award for loss of strength. The A.M.A., Guides provides that only in rare cases
should an additional award be given for loss of strength and it cannot be rated in the presence of
decreased motion or painful conditions.16 As an example, an increased rating for loss of strength
could be made if, after healing, a palpable muscle defect is present.17 Such is not the case here.
There is no other medical evidence of record that provides a greater rating for appellant’s right
shoulder impairment. He did not establish that he is entitled to a schedule award greater than the
three percent awarded on April 20, 2007.18

11

Id. at 508.

12

Id. at 477.

13

Id. at 476.

14

Id. at 479.

15

Id. at 474, section 16.4i.

16

Id. at 508, section 16.8a.

17

Id.

18

A claimant retains the right to file a claim for an increased schedule award based on new exposure or on
medical evidence indicating that the progression of an employment-related condition, without new exposure to
employment factors, has resulted in a greater permanent impairment than previously calculated. Tommy R. Martin,
56 ECAB ___ (Docket No. 03-1491, issued January 21, 2005).

4

CONCLUSION
The Board finds that appellant has failed to establish that he is entitled to a schedule
award greater than the three percent right upper extremity impairment previously awarded.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 2, 2007 be affirmed.
Issued: January 10, 2008
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPORT ACTIVITY MIDSOUTH,
Memphis, TN, Employer
__________________________________________

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

Docket No. 09-14
Issued: March 25, 2009

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 30, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated November 27, 2007 and July 15, 2008 that denied her
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
stress-related condition causally related to her federal employment.
FACTUAL HISTORY
On August 1, 2007 appellant, then a 50-year-old supervisory budget analyst, filed a Form
CA-2, occupational disease claim, alleging that working in a hostile work environment since
October 1, 2006 caused severe stress, anxiety, hypertension and irritable bowel syndrome. She

stopped work on July 17, 2007. By letter dated August 16, 2007, the Office informed appellant
of the evidence needed to support her claim.
Appellant alleged that she had been harassed by her first level supervisor, Susan Durand,
and her second level supervisor, Penny Manczko, since the employing establishment was
reorganized in October 2006, noting that she worked in Memphis, Tennessee and her supervisors
worked in Chicago, Illinois. She stated that Ms. Durand acted unethically, made false
statements, displayed a lack of trust, was dishonest, breached appellant’s confidentiality,
undermined her position with her staff by not following the chain of command, was inconsistent
in personnel and business situations, behaved erratically, and was manipulative, coercive, and
threatening such that appellant was fearful of reprisal and retribution. Appellant alleged that
Ms. Durand caused problems in March and April 2007 regarding who on appellant’s staff could
attend a budget conference. At a conference appellant attended in April 2007, Ms. Durand acted
inappropriately in a meeting by yelling and walking out. Ms. Durand threatened to pull work
from appellant, would not allow her to work overtime and inappropriately asked for medical
documentation to support appellant’s absence. Appellant alleged that Ms. Manczko would not
respond to her e-mails and delayed in responding to an administrative grievance appellant filed
on June 12, 2007. She submitted several e-mails and employing establishment policy
memoranda.
In reports dating from July 26 to September 20, 2007, Dr. John C. LaBarreare, a general
practitioner, advised that appellant’s conflicts with her supervisor over a nine-month period
caused increased blood pressure, irritable bowel syndrome, and severe stress and anxiety such
that she should not work. He recommended counseling. On September 20, 2007 Dr. LaBarreare
advised that appellant could return to work but only under a different supervisory structure and
have no communication with her previous supervisors for the remainder of her career. In a
September 18, 2007 report, Matthew P. Smith, Ph.D., a clinical psychologist, noted that he had
seen appellant for seven counseling sessions since August 16, 2007 for anxiety symptoms
secondary to job stress. He stated that appellant initially made progress but communications
with the employing establishment concerning her grievances resulted in setbacks. Dr. Smith
diagnosed adjustment disorder with anxiety, irritable bowel syndrome, hypertension and
occupational problems. He advised that appellant would not function well at work under her
present supervisor.
By letter dated September 12, 2007, the employing establishment controverted the claim.
Ms. Durand disputed each of appellant’s allegations denying that she had ever been dishonest,
acted unethically, made false statements or breached appellant’s confidentiality. She stated that,
when appellant was on leave, she contacted the acting supervisor or another employee in order to
meet deadlines. Regarding attendance at the conference, while Ms. Durand initially told
appellant that several employees could attend, Ms. Manczko overrode her decision and at that
time appellant was on leave. Ms. Durand abruptly left a meeting but returned in five minutes
and apologized. She told appellant that, if deadlines could not be met in Memphis, she had no
choice but to have the work performed in Chicago. When Ms. Durand was notified of
appellant’s claim of a hostile work environment on April 13, 2007, she requested to be removed
from being appellant’s supervisor. However, after appellant filed a grievance against
Ms. Manczko, her temporary supervisor, on July 9, 2007 Ms. Durand again became appellant’s
supervisor.

2

On September 21, 2007 appellant was relieved of duty without loss of pay, effective
September 24, 2007, because her medical restrictions could not be accommodated. In an
October 4, 2007 statement, Audry Mumford, a coworker, advised that she overheard part of a
disagreement between appellant and Ms. Durand concerning overtime. She did not perceive
Ms. Durand’s responses as a threat. On October 5, 2007 Commander Robert Beede, a Navy
chaplain, noted that he and appellant spoke on several occasions regarding work stress. In an
October 9, 2007 statement, Captain F.M. Straughan noted that he had been appellant’s direct
supervisor prior to the reorganization and that her performance and professionalism were always
above reproach. Beginning in October 2006, appellant came under more direct supervision,
receiving more scrutiny from her regional supervisors which caused her a stress that was
complicated by personality conflicts and a lack of communication. In an October 10, 2007
statement, Evelen Johnson, a coworker, stated that she did not want to be involved in appellant’s
claim. In an October 16, 2007 statement, Kelley Fitzpatrick, a former employee, advised that she
resigned in June 2007 due to a hostile work environment and attached a statement regarding her
complaints. She overheard Ms. Durand telling appellant that her entire staff could attend a
conference but that Ms. Manczko later rescinded this.
By decision dated November 27, 2007, the Office denied the claim on the grounds that
appellant did not sustain an injury in the performance of duty. It found that the evidence did not
establish a compensable factor.
On December 21, 2007 appellant requested a telephonic hearing which was held on
May 7, 2008. She testified about the budget conference, noting that while she was on leave the
number of attendees was changed. Appellant felt this was an attack on her integrity because
Ms. Durand and Ms. Manczko should have waited until she returned from leave to make the
change. After this, she could not talk with Ms. Durand over the telephone. In April 2007, a
meeting was held where appellant voiced her concerns. In June 2007, Ms. Manczko wanted her
to come to Chicago to meet with Ms. Durand and Linda Kristan and discuss her problems from
personnel but appellant refused. Appellant did not file an Equal Employment Opportunity
Commission (EEOC) claim but filed an administrative grievance; however, there was no final
decision. She was still on paid leave but her position was being abolished through a reductionin-force. Appellant had been offered a buyout and her retirement had been approved. After the
hearing she submitted comments on the hearing transcript, additional e-mails, and a
November 29, 2007 decision in which her grievance was denied but mediation was offered. On
December 20, 2007 appellant informed the employing establishment that she did not want to
engage in formal mediation because “Ms. Manczko, Ms. Durand and I have irreconcilable
differences.”
In a July 15, 2008 decision, an Office hearing representative affirmed the November 27,
2007 decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional or stress-related condition in the
performance of duty, appellant must submit the following: (1) medical evidence establishing
that she has an emotional or stress-related disorder; (2) factual evidence identifying employment
factors or incidents alleged to have caused or contributed to her condition; and (3) rationalized

3

medical opinion evidence establishing that the identified compensable employment factors are
causally related to her stress-related condition.1 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor.2 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.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 the Federal Employees’ Compensation Act.5
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.6 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that, the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.7 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.9 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.10

1

See Pamela D. Casey, 57 ECAB 260 (2005).

2

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

3

Id.

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Pamela D. Casey, supra note 1.

7

Lillian Cutler, supra note 4.

8

Jeral R. Gray, 57 ECAB 611 (2006).

9

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

10

Kim Nguyen, 53 ECAB 127 (2001).

4

For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.11
With regard to emotional claims arising under the Act, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEOC, which is charged with statutory authority to investigate and evaluate such matters
in the workplace. Rather, in evaluating claims for workers’ compensation under the Act, the
term “harassment” is synonymous, as generally defined, with a persistent disturbance, torment or
persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and feelings of
harassment will not support an award of compensation.12
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty causally related to factors of her
federal employment. Appellant alleged that she worked in a hostile work environment as she
had been harassed by her supervisors Ms. Durand and Ms. Manczko. Appellant, however,
submitted insufficient evidence to substantiate her allegations. The primary reason for requiring
factual evidence from the claimant in support of his or her allegations of stress in the workplace
is to establish a basis in fact for the contentions made as opposed to mere perceptions.13
Appellant alleged that Ms. Durand abusively threatened to pull work and denied
overtime, assigned work, monitored work, and approved or denied leave requests. These are
administrative functions of a supervisor and are not compensable absent error and abuse.14 She
also alleged that Ms. Manczko did not respond to e-mails and delayed processing a grievance.
The Board finds that appellant has not submitted sufficient evidence to establish error or abuse
on the part of her supervisors. Generally, complaints about the manner in which a supervisor
performs his or her duties or the manner in which a supervisor exercises his or her discretion fall,
as a rule, outside the scope of coverage provided by the Act. This principle recognizes that a
supervisor or manager must be allowed to perform his or her duties and employees will, at times,
dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial action
will not be compensable, absent evidence of error or abuse.15 Regarding the scheduling of
attendees at a budget conference, the record supports that Ms. Durand initially stated that several
employees could attend. However, while appellant was on leave, Ms. Manczko overrode this
decision. Appellant’s dissatisfaction with perceived poor management constitutes frustration
from not being permitted to work in a particular environment or to hold a particular position and
11

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

12

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

13

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

14

Beverly R. Jones, supra note 12.

15

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006).

5

is not compensable.16 The Board therefore finds that appellant’s contentions regarding these
administrative matters are not compensable.17
Verbal altercations and difficult relationships with supervisors, when sufficiently detailed
by the claimant and supported by the record, may constitute compensable factors of
employment.18 Ms. Durand acknowledged that she became upset at a meeting attended by
appellant but noted that five minutes later she apologized for the incident. The mere fact that a
supervisor may raise his or her voice during a conversation or meeting does not warrant a finding
of verbal abuse19 and every statement uttered in the workplace will not give rise to coverage
under the Act.20 The Board finds that the evidence concerning Ms. Durand’s actions at the
meeting do not establish error or abuse. Appellant therefore did not establish this as
compensable.
Appellant also alleged that she was harassed at the employing establishment. Mere
perceptions of harassment or discrimination are not compensable under the Act.21
Unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.22 Appellant submitted numerous e-mails
and statements which attested to her good character. However, this evidence provided no
specific information regarding her claim to substantiate error or abuse and therefore does not
corroborate her assertions.23 As these statements were general in nature, the Board finds that
appellant did not establish a factual basis for her claim of harassment by probative and reliable
evidence.24
As the record lacks probative evidence to support appellant’s claim, the Board finds that
she has not established a compensable employment factor of employment. Appellant did not
establish that she sustained a stress-related condition in the performance of duty as alleged.25

16

Peter D. Butt, Jr., 56 ECAB 117 (2004).

17

Charles D. Edwards, supra note 9.

18

David C. Lindsey, Jr., 56 ECAB 263 (2005).

19

See Joe M. Hagegood, 56 ECAB 479 (2005).

20

V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007).

21

James E. Norris, supra note 11.

22

Id.

23

See Mary J. Summers, 55 ECAB 730 (2004).

24

See Robert Breeden, 57 ECAB 622 (2006).

25

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).

6

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a stress-related condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 25, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEFENSE AGENCIES, DLA DISTRIBUTION
REGION EAST, Fort Belvoir, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Robert Boutselis, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1302
Issued: March 7, 2017

Case Submitted on the Record

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

JURISDICTION
On June 6, 2016 appellant, through his representative, filed a timely appeal from a
February 1, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than 180 days elapsed from the last merit decision, dated November 24,
2015 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA)

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

The Board notes that appellant submitted additional evidence after OWCP rendered its February 1, 2016
decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time
of its final decision. Therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. §510.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
3

5 U.S.C. § 8101 et seq.

and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this
case.4
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for an
oral hearing as untimely filed.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts follow.
On April 10, 2013 appellant, then a 32-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that on March 29, 2013 he sustained a right
Achilles strain while participating in an employing establishment wellness program at an
employing establishment fitness center. By decision dated November 26, 2013, OWCP denied
appellant’s claim finding that the evidence of record failed to demonstrate an injury on
March 29, 2013 in the performance of duty as alleged. It indicated that appellant was not
performing regular duties or activities incidental to his job and had failed to provide
documentation reflecting authorization to participate in the employing establishment’s optional
Wellness/Fitness Program. Appellant appealed to the Board on May 9, 2014. By decision dated
July 27, 2015, the Board remanded the case for further development of the factual evidence with
regard to whether appellant was authorized to participate in the Wellness/Fitness Program at the
time of his injury on March 29, 2013.
By decision dated November 24, 2015, OWCP denied appellant’s claim, finding that the
evidence of record failed to demonstrate that he sustained an injury in the performance of duty.
It noted that appellant had not established that his injury arose during the course of employment
and within the scope of compensable work factors. The November 24, 2015 decision was
addressed to appellant’s address of record. His representative was copied on the decision.6
On December 8, 2015 the U.S. Post Office returned OWCP’s November 24, 2015
decision as undeliverable.7 A handwritten note on the envelope reflected that the November 24,
2015 decision was resent by certified mail receipt number 7014 2120 0000 4050 5977 on
December 8, 2015.

4

Appellant, through his representative, submitted a timely request for oral argument. By order dated February 9,
2017, the Board exercised its discretion and denied appellant’s request for oral argument as the Board does not have
jurisdiction over the merits of this case and the arguments on appeal can adequately be addressed in a decision based
on the case record. Order Denying Request for Oral Argument, Docket No. 16-1302 (issued February 9, 2017).
5

Docket No. 14-1265 (issued July 27, 2015).

6

On April 23, 2013 appellant authorized Robert Boutselis to serve as his authorized representative.

7

C.C., Docket No. 14-745 (issued July 29, 2014).

2

In an appeal request form dated January 4, 2016, appellant requested an oral hearing
before OWCP’s Branch of Hearings and Review. He reported a new address in the same city.
The appeal was postmarked on January 8 and received by OWCP on January 12, 2016.
By decision dated February 1, 2016, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing finding that his request had not been filed within 30 days
of the November 24, 2015 decision. The Branch of Hearings and Review further determined that
the issue in the case could equally well be addressed by requesting reconsideration from OWCP
and submitting evidence not previously considered. The February 1, 2016 decision was
addressed to the previous address of record. Appellant’s representative was not copied on that
decision.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his or
her claim before a representative of the Secretary.8 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.9 OWCP regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought, as determined by
postmark or other carrier’s date marking, and also that the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.10
20 C.F.R. § 10.127 provides that a copy of the decision shall be mailed to the employee’s
last known address. If the employee has a designated representative before OWCP, a copy of the
decision shall also be mailed to the representative.11 A copy of the decision shall also be sent to
the employing establishment.
ANALYSIS
The Board has considered the matter and finds that the February 1, 2016 Branch of
Hearings and Review’s decision must be set aside.
By decision dated November 24, 2015, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record failed to demonstrate that he sustained an injury in the
performance of duty. Appellant’s representative was copied on the decision.

8

5 U.S.C. § 8124(b)(1).

9

20 C.F.R. § 10.615.

10

Id. at § 10.616(a).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Representatives’ Services, Chapter 2.1200.3(b)(2)
(June 2012).

3

In an appeal request form dated January 4, 2016 and postmarked January 8, 2016,
appellant requested an oral hearing before OWCP’s Branch of Hearings and Review. He
recorded a new address.
By decision dated February 1, 2016, the Branch of Hearings and Review denied
appellant’s request for an oral hearing, finding that the request was not made within 30 days of
the November 24, 2015 decision. This decision was sent to appellant’s former address.
Appellant’s representative was not copied on that decision.
The record shows that appellant had advised OWCP of the name and address of his
designated representative who had been acknowledged by OWCP and copied on prior decisions.
However, OWCP’s Branch of Hearings and Review failed to send a copy of the February 1,
2016 decision to the authorized representative.
OWCP’s regulations and Board case law require OWCP to send a copy of its decisions to
the employee’s last known address and to the authorized representative.12 The Board has held
that decisions under FECA13 are not properly issued unless both appellant and the authorized
representative have been sent copies of the decision.14 As the February 1, 2016 decision was not
sent to appellant’s representative, and was not mailed to his updated address of record, the Board
finds that the decision was not properly issued.15 The presumption of receipt does not apply
where a notice is sent to an incorrect address.16
For the reasons noted above, the Board finds that the February 1, 2016 decision was not
properly issued.17 The Board will set aside the decision and remand the case for an appropriate
and properly issued merit decision on the relevant issues.18

12

20 C.F.R. § 10.127 provides: a copy of the decision shall be mailed to the employee’s last known address. If
the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the
representative. See also M.R., Docket No. 11-632 (issued September 28, 2011). In George R. Bryant, Docket No.
03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision when
it did not send a copy of that decision to the authorized representative on that date; OWCP conceded a procedural
error and advised that a merit review would be provided on remand to preserve appellant’s rights. In James
Consentino, Docket No. 04-1774 (issued October 21, 2004), the Board found that OWCP improperly issued a
decision terminating compensation because it did not mail the decision to appellant’s representative and declared the
termination decision null and void. Although OWCP subsequently denied modification of the termination, the
Board found that the merit reviews did not resuscitate the termination as OWCP had prejudiced appellant by
denying his representative the opportunity to assist in post-deprivation remedies, including a timely hearing under 5
U.S.C. § 8124.
13

Supra note 3.

14

See R.J., Docket No. 12-174 (issued June 25, 2012); Travis L. Chambers, 55 ECAB 138 (2003).

15

See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).

16

R.W., Docket No. 15-1886 (issued February 4, 2016).

17

W.S., Docket No. 14-842 (issued July 29, 2014).

18

George R. Bryant, Docket No. 03-2241, (issued April 19, 2005).

4

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: March 7, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5