United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Montgomery, AL, Employer
__________________________________________

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

Docket No. 12-1951
Issued: March 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 24, 2012 appellant filed a timely appeal of a September 5, 2012 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
an emotional condition due to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board on appeal. The relevant facts are as
follows. On December 8, 2010 appellant, then a 52-year-old ultrasound medical technician, filed
1

5 U.S.C. § 8101 et seq.

an occupational disease claim alleging that she developed stress, depression, frustration, severe
anxiety and work-related post-traumatic stress disorder. She attributed her condition to the
requirement that she stay past her scheduled dismissal time. Appellant stated that she was unable
to leave at the end of her shift due to an overflow of patients. She stated that the employing
establishment was shorthanded and that her supervisor would not allow her to leave when her
shift ended.
By decision dated June 9, 2011, OWCP denied appellant’s claim for an emotional
condition on the grounds that she had not submitted any medical evidence relating a diagnosed
condition to her employment.
Appellant requested reconsideration on July 11, 2011. By decision dated September 2,
2011, OWCP declined to reopen her case for review of the merits on the grounds that she failed
to submit any relevant new evidence in support of her request for reconsideration.
The Board considered OWCP’s decisions on June 5, 2012.2 The Board found that there
was sufficient medical evidence to establish diagnosed medical conditions including generalized
anxiety disorder, post-traumatic stress disorder -- chronic, panic disorder without agoraphobia,
major depressive disorder. The Board remanded the claim for OWCP to consider the factors to
which appellant attributed her condition.
Appellant submitted notes from the employing establishment medical clinic which
verified that on December 1, 2010 she had presented a note from her physician limiting her work
schedule to her normal work hours and no overtime. In a note dated November 2, 2010,
Dr. Keith S. Hughes, a Board-certified family practitioner, stated that appellant should not work
overtime due to her mental health. Dr. William C. Freeman, a Board-certified psychiatrist,
completed a note on November 24, 2010 and stated that appellant should not work any overtime
due to medical reasons for two months. On December 3, 2010 Dr. Hughes completed a
certification of serious health condition in conjunction with appellant’s request for leave under
the Family and Medical Leave Act. He indicated that appellant could not perform overtime or
on-call duty and diagnosed post-traumatic stress disorder.
Appellant submitted a series of e-mails she had sent to management addressing the
scheduling of patients for ultrasounds. In an e-mail dated December 3, 2010, she requested that
her supervisor, Connie L. Smith, abide by her physician’s orders and not schedule appointments
such that appellant was required to work overtime. On July 8, 2010 appellant protested that her
on-call pay was removed from the entire night when she did not respond to calls to her home
telephone and was not paged on her pager number.
By letter dated February 18, 2011, OWCP requested additional factual and medical
evidence in support of appellant’s claim. In a statement dated February 21, 2011, appellant
stated that she was a veteran with post-traumatic stress disorder from spousal abuse and military
sexual trauma, an attempted rape and sexual harassment by her supervisor during her military
career. She stated that her health was precarious due to metabolic syndrome, extremely high
cholesterol as well as diabetes.
2

Docket No. 11-2144 (issued June 5, 2012).

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Appellant alleged that she was overworked, that she had asked for help and had been
promised help for five years, but still worked by herself. She stated that her physician
recommended no overtime for two months, but that this recommendation was not honored by the
employing establishment. Appellant noted that her regular hours were Monday through Friday
from 8:00 am until 4:30 pm. She stated that she was frequently pressured to stay past her shift,
with physicians adding patients at 4:29 pm. Appellant stated that there were not enough
technicians to cover ultrasound calls resulting in delays. She stated that her supervisors,
Ms. Smith and John L. Marshall pressured her to add more patients to the schedule causing her
stress. Appellant stated that patients had been admitted and added to her schedule when she
returned from her scheduled days off. She noted that weekend patients were directed to appear
Monday morning at 8:00 am, but were not informed that they would have to be worked into the
schedule. These patients then frequently became upset with appellant due to the wait, while
patients with scheduled appointments also became irate due to delays.
Appellant stated that she was the only technician performing many lengthy examinations.
She stated that her supervisor tried to coerce her into working overtime by adding patients at the
end of the day. Appellant stated that her average day was more than 10 patients, plus add-ons
from the emergency room, clinics and intensive care unit. She alleged that her supervisors did
not help to regulate patient flow by informing doctors that the table was booked. Appellant
noted on one occasion that she was an hour late leaving and was unable to pay her power bill on
time resulting in no power for her for two weeks. She stated that, when her supervisor gave her a
direct order to work overtime, she was afraid that she would be found insubordinate and fired if
she left. Appellant alleged that she was unable to find assistance for venous studies which
required a second person to squeeze the legs for augmentation and approximately an hour to scan
both legs. She noted that she was instructed to have a chaperon for ultrasounds of scrotum, but
was required to search for volunteers and if no one was available was frequently sexually
harassed when performing these studies by herself. Appellant noted that the patient population
frequently required help to access the table either through lifting or positional assistance and that
she was also forced to search for volunteers. She alleged that she was required to perform x-ray
call even though she had not performed x-rays for over 10 years. Appellant stated that she
requested to be removed from this duty but this request was denied. She stated that she had no
control over her schedule and was required to work in the x-ray department which resulted in
rescheduling her patients.
Appellant stated that patients, nurses and doctors yelled at her due to waiting times. She
stated that she was completely overwhelmed, going as fast as she could, but that her speed was
never fast enough. Appellant stated that she was subjected to sarcasm, antagonism, intimidation,
harassment, ridicule and retaliation on a daily basis. She stated that coworkers questioned her
sick leave usage. Appellant alleged that “supervisor … John” asked why she did not wear makeup as he liked eye candy. She stated that she reported sexual harassment to her supervisor
including a coworker, Ferman Miller, reaching inside her bra, feeling and squeezing her breasts
as well as asking to see them. Appellant reported that a supervisor kept chocolate on his desk for
all the “moody” women and stated that one woman was always on her period. She noted that he
made her the butt of his jokes by telling coworkers that she was “too dumb to pass the registry
certification test.” Appellant alleged that her supervisor accused her of being “slutty” and
looking at naked pictures of men at work. She also alleged that she was discriminated against
through the denial of a bonus.
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Appellant submitted e-mails in support of her claim. In an e-mail dated March 24, 2010,
she stated that three examinations had been rescheduled and that she already had add-ons.
Vichai Chaichamcheep responded and stated that this was an unresolved chronic issue and asked
whether additional qualified ultrasound staff could be requested. Appellant corresponded with
Stephen Pursley on October 6, 2010 and stated that she had 17 patients and stayed until 6:00 pm.
Mr. Pursley suggested some ultrasound help. On December 3, 2010 appellant informed her
supervisors that she was not to work overtime in accordance with her physician’s orders.
Mr. Marshall, a supervisor, refused to pay appellant the on-call subsidy on June 16, 2010 as she
did not respond to pages. Appellant checked her pager and the system indicated that she was not
paged. She requested that Mr. Marshall correct the error in her paycheck. Mr. Marshall refused
and appellant alleged that she was treated differently from others. On September 16, 2009
appellant requested that clerks call the patients and inform them when no technician was
available. On September 18, 2009 Mr. Marshall noted that appellant examined eight patients and
performed 10 examinations three of which transferred from another facility.
Appellant submitted a series of text messages dated January 18, 2010, addressing whether
the recipient would have sex with the sender. She alleged that these were to her from Mr. Miller.
On August 3, 2010 and February 10, 2011 appellant sent an e-mail to management and listed her
issues with scheduling. Mr. Marshall responded and suggested that Ms. Smith only perform
emergency and ward patients when appellant is using annual leave.
In an e-mail dated February 16, 2011, Sandra Melton requested that appellant change her
sick leave requests from January 26 through 28, 2011 to a request for annual leave as she had no
sick leave available.
Following the Board’s June 5, 2012 decision, OWCP requested additional factual
information from the employing establishment which responded on July 19, 2012 noting that
appellant had never requested to be removed from the radiology department due to sexual
harassment. The employing establishment stated that sexual comments were common among the
staff and that she participated. It stated that appellant frequently socialized with the coworker
who sent the sexually charged messages. The employing establishment stated, “The agency feels
[appellant] more than likely has not suffered the extreme harassment claimed, but probably is
taking revenge on coworkers for a personal falling out.” It noted that she took the sexual
harassment claims out of her Equal Employment Opportunity (EEO) complaint.
The employing establishment further noted that appellant’s overtime was not as extreme
as presented. It concluded, “The agency sees [appellant] was very busy many days, but her
inability to cope with the volume of work, lack of medical support and her voluntary decision to
not ask for accommodation or removal from the environment, demonstrates to the agency the
allegations are not of substance to the extreme she is alleging.”
Mr. Marshall completed a statement on July 19, 2012 and denied suggesting that
appellant wear makeup. He stated that, when she was busy, she had help from Ms. Smith and
that appellant was busy when the policy to have baseline ultrasounds of the aorta was instituted.
Mr. Marshall noted that appellant reported that Mr. Miller made sexual remarks and requested
that Mr. Marshall discuss the issue without mentioning her specifically. He counseled
Mr. Miller and instructed him to maintain a professional attitude. Mr. Marshall denied making

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appellant the butt of jokes, but stated that she repeated all his suggestions to all the technologists
including Mr. Miller. He denied discriminating against appellant by denying her a bonus.
In an undated statement, Collin C. Bailey alleged that appellant’s statements were not
substantiated. He noted that appellant had not made any request for accommodation, but was
working under an FMLA request beginning in December 2010 which stated that appellant should
not be scheduled for overtime, scanned minimal add-on patients and was not to work past 4:30
p.m. Mr. Bailey acknowledged that patient flow could not always be predicted and that scans
could take longer than average. He alleged that appellant’s last scheduling slot was 4:00 p.m.
Mr. Bailey stated that she received help in time of increased workload and noted that other
technologists performed scans. He asserted that appellant was not overworked as she averaged 7
patients a day when a comparison with other employing establishment sonographer’s who
averaged between 10 and 20 patients. Mr. Bailey stated that she exaggerated the amount of
overtime that she worked and that she generally worked no more than 30 minutes of overtime on
three occasions since the FMLA request in December 2010. He noted that prior to the FMLA
appellant did work overtime including five hours on March 20, 2010. Mr. Bailey disagreed with
her statements noting that while she scanned 16 patients on October 6, 2010 she did not work
overtime on that date and most scans were only 20 minutes. He agreed that Ms. Melton
requested that a leave status be changed as appellant did not have sufficient sick leave to cover
her requested leave. Mr. Bailey explained the scheduling process and noted that some weekend
patients misinterpreted the instructions and appeared with the expectation of a scan without
scheduling an appointment, but that this was not the norm.
In a statement dated July 17, 2012, Mr. Miller denied any unwanted sexual conduct and
acknowledged the conversation with Mr. Marshall.
The employing establishment provided documentation of an award for $250.00 which
appellant received on June 22, 2011. It also provided documentation of a group award on
February 24, 2012 in the amount of $600.00 which she received. In a series of e-mails dated
July 19, 2012, appellant stated that she had removed sexual harassment from her list of EEO
bases and claims. The employing establishment provided her overtime worked from January 1,
2010 through July 17, 2012.
The employing establishment provided a list of appellant’s patients and procedures from
May 24 through September 30, 2011. Also included was a technologist workload report dated
October 1, 2011 through June 30, 2012 which indicated that she performed 88 percent of the
ultrasound examinations or 1,178 compared to 183, 131 and 175 by her coworkers.
Appellant responded on August 12, 2012 and stated that her post-traumatic stress
disorder was triggered by Mr. Miller. She alleged that the position description was changed to
include x-ray duties. Appellant alleged that her FMLA was not accepted until she filed the EEO
complaint. She submitted a written confirmation of request for accommodation dated
April 1, 2011. Appellant submitted a statement dated August 18, 2011 entitled EEO retaliation
complaint regarding her FMLA request. She submitted a statement from a coworker dated
July 17, 2011 that Ms. Smith forced her to work overtime on October 27, 2010. On July 25,
2012 appellant received a mid-point performance counseling. In an e-mail dated August 21,
2012, she requested information regarding the policy to cover her sick leave usage. On July 25,

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2012 appellant received written counseling from inappropriate e-mail.
documentation of her EEO complaint and a statement from her son.

She submitted

By decision dated September 5, 2012, OWCP denied appellant’s claim for an emotional
condition. It found that she had not established any compensable factors of employment.
LEGAL PRECEDENT -- ISSUE 1
To establish appellant’s occupational disease claim that she has sustained an emotional
condition in the performance of duty, she must submit the following: (1) factual evidence
identifying and supporting employment factors or incidents alleged to have caused or contributed
to his condition; (2) rationalized medical evidence establishing that she has an emotional or
psychiatric disorder; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to her emotional condition.
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. Such an opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by appellant.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.5 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.6 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.7 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus disability
is not covered when it results from an employee’s fear of a reduction-in-force, nor is disability

3

Mark E. Richardson, Docket No. 02-2182 (issued March 17, 2003).

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Robert W. Johns, 51 ECAB 136 (1999).

7

Cutler, supra note 4.

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covered when it results from such factors as an employee’s frustration in not being permitted to
work in a particular environment or to hold a particular position.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 FECA.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 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.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.12
ANALYSIS
Appellant has attributed her emotional condition to overwork, requirements that she
exceed her medical restrictions, denial of leave requests, bonuses and on-call pay as well as
sexual harassment, patient conflict and harassment from her coworkers and superiors. The
employing establishment has responded to appellant’s allegations and OWCP denied her claim
finding that she had not established a compensable factor of employment.
Appellant’s allegation that she was overworked would be a compensable factor of
employment if substantiated as it relates directly to her attempts to perform her duties under
Cutler.13 She has alleged that she was required to perform an unreasonable number of scans, to
work overtime and to perform duties beyond her position description. Mr. Chaichamcheep
completed an e-mail stating that appellant’s overbooked schedule was an unresolved chronic
issue and asked whether additional qualified ultrasound staff could be requested. This e-mail
supports appellant’s allegation that she was overworked. Mr. Bailey stated that she received help
in time of increased workload and noted that other technologists performed scans. He asserted
that appellant was not overworked as she averaged 7 patients a day when a comparison with
8

Id.

9

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

10

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
11

Roger Williams, 52 ECAB 468 (2001).

12

Alice M. Washington, 46 ECAB 382 (1994).

13

Supra note 4.

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other employing establishment sonographer’s who averaged between 10 and 20 patients. The
Board finds that she has not established that the duties of her position were such that she was
overworked.
Appellant has not submitted substantiating evidence to counterbalance
Mr. Bailey’s statements.
Appellant also submitted a statement from a coworker that she was required to work
overtime on October 27, 2010 performing three additional examinations after her regular duty
ended. The employing establishment provided a list of overtime which indicated that she
worked 45 minutes of overtime on this date. Appellant also alleged that she was required to
work overtime on October 6, 2010. The employing establishment’s list indicates that she did not
work overtime on that date. Appellant also submitted evidence of her medical restriction of no
overtime under the FMLA beginning December 2010, Mr. Bailey admitted that appellant was
required to work overtime on three occasions since that date. The Board finds that appellant has
substantiated that she was required to work beyond her medical restrictions and established a
compensable factor of employment in this regard.
Appellant attributed her emotional condition to contact with her patients specifically
those who were directed to undergo scans after weekend admissions to the emergency room and
appeared without appointments on the following week day. Mr. Bailey conceded that patients
did misunderstand instructions and did appear without appointments. Where a disability results
from a claimant’s emotional reaction to her regular or specially assigned work duties or to a
requirement imposed by the employment, the disability comes within coverage of FECA.14 The
Board has held that conditions related to stress from situations in which an employee is trying to
meet his or her position requirements are compensable. In this case, the evidence is sufficient to
establish that appellant experienced stress and anxiety in performing her regular duties of
placating patients who misunderstood instructions. Thus, the Board finds that appellant has
established a compensable employment factor. As appellant has substantiated that she was faced
with patients who did not understand procedure as part of her employment duties, she has
established this element of her claim.
Appellant alleged that she was improperly denied bonuses, that her sick leave requests
were altered and that she was denied on-call pay. These actions are administrative functions of
the employing establishment. An administrative or personnel matter will be considered to be an
employment factor only where the evidence discloses error or abuse on the part of the employing
establishment.15 The employing establishment has asserted that appellant was not denied
bonuses, has explained why her sick leave request was altered to annual leave and otherwise
denied error in these actions. Appellant has not submitted any evidence establishing error or
abuse on the part of the employing establishment in these administrative actions and has
therefore not established compensable factors of employment in regard to these events.
Appellant has also alleged that she was subjected to sexual harassment by Mr. Miller and
Mr. Marshall. She submitted a series of text messages dated January 18, 2010, addressing
whether she would have sex with the sender. Appellant alleged that these were from Mr. Miller.
14

Lawrence Scott, Docket No. 05-315 (issued May 11, 2005).

15

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

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Both Mr. Miller and Mr. Marshall have denied appellant’s allegations of sexual harassment.
Furthermore the record contains an e-mail from appellant removing that allegation of sexual
harassment from her EEO complaint. The Board notes that there is no evidence substantiating
her allegations of sexual harassment and that therefore she has not established this aspect of her
claim as a compensable factor of employment.
Appellant attributed her emotional condition to the working conditions at the employing
establishment including being subjected to sarcasm, antagonism, intimidation, harassment,
ridicule and retaliation including raised voices, inappropriate remarks and actions by her
supervisors and coworkers. As noted above, her perceptions of harassment are not sufficient to
establish a compensable employment factor as harassment must be established to have occurred.
Appellant has submitted no corroborative evidence of harassment and both Mr. Marshal and
Mr. Bailey denied that she was subjected to harassment as alleged. The Board finds therefore
that she has not substantiated this allegation.
The Board finds that appellant has established two factors of employment, that she was
required to work overtime beyond her medical restrictions and that she was required to address
patient confusion regarding procedures in the regular course of her employment. As appellant
established compensable employment factors OWCP must base its decision on an analysis of the
medical evidence. OWCP found there were not compensable employment factors and did not
analyze or develop the medical evidence. The case will be remanded to OWCP for this purpose.
After such further development as deemed necessary, OWCP should issue a de novo decision on
this claim.16
CONCLUSION
The Board finds that appellant has established compensable factors of employment and
remands the cas5e for further development by OWCP.

16

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

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ORDER
IT IS HEREBY ORDERED THAT the September 5, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: March 5, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Bethesda, MD, Employer
__________________________________________

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Appearances:
Appellant, pro se
Hans K Wild, Esq., for the Director

Docket No. 10-1560
Issued: June 23, 2011

Oral Argument May 11, 2011

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

JURISDICTION
On May 25, 2010 appellant filed an appeal of a merit decision of the Office of Workers’
Compensation Programs (OWCP) dated March 8, 2010 denying her claim and a May 12, 2010
decision denying her request for an oral hearing. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
sustained an injury in the performance of duty on January 15, 2010, as alleged; and (2) whether
OWCP properly denied her request for an oral hearing as untimely.
On appeal, appellant requests that OWCP pay outstanding medical bills for services
rendered in connection with the January 15, 2010 incident.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 26, 2010 appellant, then a 62-year-old biomedical librarian/informationist,
filed a traumatic injury claim, Form CA-1, alleging that on January 15, 2010 she sustained back,
neck and head trauma after being in an automobile accident in Boston, MA. She was a
passenger in a taxi when the accident occurred. Appellant was transported to the emergency
room at the local hospital and released the same day.
In support of her claim, appellant submitted a January 26, 2010 treatment note from
Dr. Heike Bailin, a Board-certified family practice physician, who noted that she reported that on
January 15, 2010 at approximately 1:20 p.m. in Boston, she was traveling by taxi from the
airport to the hotel for work-related conference when her taxi collided with a sport utility vehicle
(SUV). Dr. Bailin noted that she had been treated at Tufts Medical Center for lumbar-hip strain
and was working full duty. Appellant reported neck pain and dizziness. Dr. Bailin provided an
assessment of motor vehicle accident while on work travel with low back pain and hip pain, now
resolved, cervical pain and dizziness.
In a February 4, 2010 letter, OWCP advised appellant that the information was
insufficient to support her claim and requested that she provide additional factual and medical
information within 30 days. It advised her that her physician must submit a detailed, narrative
medical report and explain why the condition diagnosed was believed to have been caused or
aggravated by her claimed injury.
In several statements, appellant advised that on January 15, 2010 she was on official duty
in Boston when the taxi in which she was a passenger collided with an SUV. In support of her
assertion she provided: January 13, 2010 travel authorization; e-mails from appellant to her
supervisor, Susan Whitmore, dated January 15 and 17, 2010, which detailed her accident on
January 15, 2010; a January 15, 2010 Boston Police Department Incident report; a February 16,
2010 statement from Carol M. Tobin, University of North Carolina at Chapel Hill University
Library; and a February 17, 2010 statement from Ms. Whitmore, Chief, Information and
Education Services Branch.
In the January 15, 2010 police incident report, Edward T. Norton, reporting officer,
indicated that about 1:21 p.m. on Friday, January 15, 2010 he received a radio call for a motor
vehicle accident with injuries. The report indicated that appellant was a passenger in the taxi
which was involved in the motor vehicle accident and that she was taken by ambulance to Tufts
New England Medical Center for treatment of injuries to her neck and back.
In a February 16, 2010 statement, Ms. Tobin indicated that appellant had called her
around 1:21 p.m. on January 15, 2010 and told her that the cab she was riding in had been in an
accident. She stated that she went outside the hotel and saw the cab and the SUV, both of which
had damage, as well as rescue workers and security/police directing people around the accident.
Ms. Tobin stated that appellant was in an ambulance and that the paramedics stated that she
should go to the hospital. In a February 17, 2010 statement, Ms. Whitmore indicated that
appellant was on official duty when she was traveling from Bethesda, MD, to Boston, MA, to
attend the American Library Association mid-winter meeting when the motor vehicle accident
occurred.

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Appellant also submitted a January 20, 2010 receipt from Potomac Physician Associates;
a Blue Cross, Blue Shield Statement -- Explanation of Benefits paid; January 15, 2010 discharge
instructions from the Tufts Medical Center Emergency Department; and a January 21, 2010
computerized tomography (CT) scan. The January 15, 2010 discharge instructions from the
Tufts Medical Center Emergency Department stated “care provided by Dr. Sanja Petrovic, [a
Board-certified psychiatrist] with the diagnosis of Hip-Thigh Sprain -- s/p mva.”
By decision dated March 8, 2010, OWCP denied appellant’s claim. It found that the
employment incident occurred as alleged but there was insufficient medical evidence to establish
that the incident caused an injury.
In an appeal request form dated April 7, 2010, appellant requested an oral hearing before
OWCP’s hearing representative. The request was postmarked April 8, 2010. Appellant
submitted an April 7, 2010 statement along with a January 15, 2010 medical report from
Dr. Franklin Friedman, a Board-certified emergency physician.
By decision dated May 12, 2010, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds that it was not timely filed. It considered
the matter in relation to the issue involved and further denied the request for the reason that the
issue in the case could be addressed by requesting reconsideration.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing 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 timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
2

On appeal, appellant specifically referenced the January 15, 2010 report of Dr. Friedman, which was received in
the record after OWCP issued its March 8, 2010 decision. The Board may not consider this evidence on appeal as
OWCP did not consider it in reaching a decision. See 20 C.F.R. § 501.2(c)(1) (2010).
3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989); E.K., Docket No. 09-1827
(issued April 21, 2010).

3

a personal injury.5 An employee may establish that the employment incident occurred as alleged
but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS -- ISSUE 1
There is no dispute that appellant was in the performance of duty when the motor vehicle
accident occurred on January 15, 2010, as alleged. Therefore, the issue is whether she submitted
sufficient medical evidence to establish that the employment incident caused an injury.
Appellant submitted discharge instructions from Tufts Medical Center which reference
Dr. Petrovic and note that she was diagnosed with hip/thigh sprain status post motor vehicle
accident. However, Dr. Petrovic offers no opinion which addresses how the January 15, 2010
accepted motor vehicle accident caused her diagnosed conditions. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.8 Thus, the discharge instructions
are insufficient to establish appellant’s claim.
In his January 26, 2010 progress notes, Dr. Bailin noted the history of the work incident.
He provided an assessment of motor vehicle accident while on work travel with low back pain
and hip pain, now resolved; cervical pain and dizziness. While he noted in general the motor
vehicle accident, Dr. Bailin did not specifically state that the work incident caused appellant’s
pain and he failed to provide a well-rationalized opinion on causal relationship. Medical reports
not containing adequate rationale on causal relationship are of diminished probative value and
are insufficient to meet an employee’s burden of proof.9 Additionally, Dr. Bailin’s assessment of
resolved low back and hip pain, cervical pain and dizziness are descriptions of a symptom rather

5

In clear-cut traumatic injury claims where fact of injury is established and competent to cause the condition
described, such as a fall from a scaffold resulting in a broken arm, a physician’s affirmative statement is sufficient
and no rationalized opinion on causal relationship is needed. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3d(2) (June 1995). In all other traumatic injury claims, a rationalized medical
opinion supporting causal relationship is required. Id. at Chapter 2.805.3d(3).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

See Gary J. Watling, 52 ECAB 278 (2001).

8

See K.W., 59 ECAB 271 (2007); Michael E. Smith, 50 ECAB 313 (1999).

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

4

than a clear diagnosis of the medical condition.10 It becomes almost impossible to establish
causal connection in appellant’s claim because he has not identified a medical condition that
causes her pain. Thus, Dr. Bailin’s progress notes are insufficient to establish appellant’s burden
of proof.
The remainder of the medical evidence, which includes a CT scan, is insufficient to
establish the claim as the diagnostic study does not address causal relationship. The other
evidence of record, which includes a receipt from Potomac Physician Associates, a statement
from Blue Cross, Blue Shield, the travel authorization, the police report, as well as the various
statements from appellant and others, are insufficient as they fail to provide a physician’s
opinion on the medical issue of causal relationship.
As appellant has not submitted any rationalized medical evidence to support her claim
that she sustained an injury causally related to the January 15, 2010 employment incident, she
has failed to meet her burden of proof to establish a claim. The Board has held that the mere fact
that a condition manifests itself during a period of employment does not raise an inference of
causal relation.11 An award of compensation may not be based on surmise, conjecture,
speculation or on the employee’s own belief of causal relation.12 Causal relationships must be
established by rationalized medical opinion evidence. Appellant failed to submit such evidence
and OWCP properly denied her claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
The Board further finds that OWCP did not adjudicate the issue of appellant’s medical
expenses incurred on January 15, 2010. On appeal, appellant requested payment of medical bills
for emergency care services rendered on January 15, 2010 at Tufts Medical Center emergency
department. Ordinarily, the employing establishment will authorize treatment of a job-related
injury by providing the employee a properly executed (Form CA-16) within four hours.13 In this
case, the record does not contain a Form CA-16 or any other authorization from OWCP for
medical treatment. However, under section 8103 of the Act, OWCP has broad discretionary
authority to approve unauthorized medical care which it finds necessary and reasonable in cases
of emergency or other unusual circumstances.14

10

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).
11

Daniel O. Vasquez, 57 ECAB 559 (2006).

12

D.D., 57 ECAB 734 (2006).

13

Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (September 1995).
14

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); D.R., Docket No. 101280 (issued February 1, 2011); see also Federal (FECA) Procedure Manual Chapter 3.300.3(a)(3), supra note 7.

5

Appellant was transported to the emergency room at Tufts Medical Center for
examination immediately after the employment incident. OWCP did not adjudicate whether
emergency or unusual circumstances were present.15 Although it adjudicated and denied
appellant’s claim of injury, OWCP did not adjudicate the issue of whether she should be
reimbursed for medical expenses incurred. OWCP is required to exercise its discretion to
determine whether medical care has been authorized, or whether unauthorized medical care
involved emergency or unusual circumstances, and is therefore reimbursable regardless of
whether the underlying claim for benefits has been accepted or denied.16 The case will be
remanded for further development of this issue.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides in pertinent part as follows:
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 issuance of the decision, to a hearing on her claim before a
representative of the Secretary.17
The claimant can choose between two formats: an oral hearing or a review of the written
record. The requirements are the same for either choice.19 The Board has held that section
8124(b)(1) is unequivocal in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark
or other carrier’s date marking20 and before the claimant has requested reconsideration.21
However, when the request is not timely filed or when reconsideration has previously been
requested, OWCP may within its discretion, grant a hearing or review of the written record, and
must exercise this discretion.22
18

ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim on March 8, 2010. Appellant’s request for an oral
hearing before an OWCP hearing representative was dated April 7, 2010 and postmarked
15

E.K., supra note 4.

16

Michael L. Malone, 46 ECAB 957 (1995). See Herbert J. Hazard, 40 ECAB 973 (1989).

17

5 U.S.C. §§ 8101-8193, § 8124(b)(1).

18

20 C.F.R. § 10.615.

19

Claudio Vazquez, 52 ECAB 496, 499 (2001).

20

20 C.F.R. § 10.616(a); Tammy J. Kenow, 44 ECAB 619 (1993).

21

Martha A. McConnell, 50 ECAB 129, 130 (1998).

22

Id.

6

April 8, 2010. The date of filing of her hearing request is determined by the date of the
postmark.23 Appellant’s April 8, 2010 hearing request was made more than 30 days after the
date of OWCP’s March 8, 2010 decision. Therefore, the Board finds that her request for an oral
hearing was not timely. The 30-day time period for determining the timeliness of appellant’s
request for an oral hearing or review commences on the first day following the issuance of
OWCP’s decision.24 As OWCP’s decision was issued March 8, 2010, the 30-day period for
requesting an oral hearing began to run on March 9, 2010 and the last or 30th day was
April 7, 2010. Since appellant’s request for an oral hearing was postmarked April 8, 2010, it was
untimely as it fell on the 31st day after the issuance of OWCP’s decision. Accordingly, she was
not entitled to a hearing as a matter of right.
OWCP has the discretionary authority to grant a hearing even though a claimant is not
entitled as a matter of right. In its May 12, 2010 decision, OWCP properly exercised its
discretion. OWCP considered the issue involved and denied appellant’s request for a hearing on
the basis that her claim on the issue of whether she established an injury on January 15, 2010, as
alleged, could be adequately addressed through the reconsideration process and the submission
of additional evidence. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.25 In the present case, OWCP did not abuse its discretion in
denying a discretionary hearing. For these reasons, it properly denied appellant’s request for an
oral hearing under section 8124 of FECA.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury on January 15, 2010, as alleged. The Board also finds that OWCP properly
denied appellant’s request for an oral hearing as untimely. The case will be returned to OWCP
for consideration of whether appellant’s medical expenses related to her treatment on January 15,
2010 should be reimbursed.

23

See N.M., 59 ECAB 511 (2008) (a hearing 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).
24

See Donna A. Christley, 41 ECAB 90, 91 (1989); see also John B Montoya, 43 ECAB 1148, 1151-52 (1992).

25

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

7

ORDER
IT IS HEREBY ORDERED THAT the May 12, 2010 the Office of Workers’
Compensation Programs’ decision is affirmed and March 8, 2010 decision is affirmed in part and
set aside and remanded for further development consistent with this decision.
Issued: June 23, 2011
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Northport, NY, Employer
__________________________________________

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

Docket No. 08-1561
Issued: February 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 6, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs merit decision dated April 21, 2008, which terminated her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
and medical benefits effective April 21, 2008.
FACTUAL HISTORY
This is the second appeal before the Board. In a November 12, 1998 decision, the Board
found that the case was not in posture for decision on whether appellant sustained a recurrence of

disability in April 1995 causally related to her accepted lumbosacral sprain. The facts of the
claim as set forth in the prior Board decision, are hereby incorporated by reference.1
On remand, the Office accepted that appellant sustained recurrences of disability on
April 30 and August 11, 1995. In a September 26, 2000 decision, it determined that her actual
earnings as a modified licensed practical nurse fairly and reasonably represented her wageearning capacity. In decisions dated February 22 and June 14, 2001, the Office affirmed the
September 26, 2000 wage-earning capacity decision.
On August 29, 2005 appellant filed a recurrence of disability claim (Form CA-2a) on
August 22, 2005, asserting back and leg pain and spasms when getting up from a chair. She
stopped work on August 22, 2005 and did not return. In a November 18, 2005 letter, the Office
advised appellant that her claim for a recurrence of disability on August 22, 2005 was being
developed as a new injury claim. It assigned appellants’ claim file number xxxxxx755 and
accepted the condition lumbosacral radiculitis. The Office noted that the medical evidence
provided did not establish that appellant’s degenerative disc disease, herniated disc or bulging
disc were employment related.
In a July 30, 2007 medical report, Dr. Robert A. Smith, a Board-certified orthopedic
surgeon and Office referral physician, opined that the soft issue spine strain from the
December 15, 1991 work incident had resolved. He noted that there was some persistent low
grade neuritis in the right lower extremity related to the August 22, 2005 work incident.
Dr. Smith explained that the mild atrophy in the right calf was a residual of the August 22, 2005
incident and was unlikely to completely resolve since it had been present for essentially two
years. He advised that appellant was able to perform a sedentary or light-duty job with lifting
restrictions. Dr. Smith further opined that appellant’s current treatment, which essentially
involved medication, was reasonable and related to the August 22, 2005 work incident.
In attending physician’s reports, Dr. David Katz, a physiatrist and appellant’s treating
physician, found that she was totally disabled due to her L5-S1 radiculopathy and discogenic
disease causally related to her August 22, 2005 employment injury. In an August 10, 2007 letter,
Dr. Katz confirmed that appellant was on chronic narcotic medication and that such medication
disabled her.
The Office found a conflict in medical opinion between Dr. Katz and Dr. Smith. By
letter dated September 27, 2007, it referred appellant to Dr. Russell N. Worobec, a Boardcertified orthopedic surgeon, for an impartial medical examination on her capacity for work.
In an October 22, 2007 report, Dr. Worobec reviewed appellant’s history and noted that
her initial diagnosis of lumbar strain/sprain was correct. He advised that the minor herniation
noted on magnetic resonance imaging (MRI) scan was not responsible for her back complaints.
Dr. Worobec stated that the changes at the disc level were not produced by trauma and that she
had no motor or sensory changes in the lower extremities. He stated that physical examination
failed to reveal any sign of radiculopathy involving the lower or upper extremities. Dr. Worobec
found that she had degenerative disc changes and progressive changes of wear and tear, as noted
1

Docket No. 97-933 (issued November 12, 1998).

2

on the recent MRI scan. He opined that appellant’s pain was not caused by the herniated disc at
L5-S1 but was produced by the degenerative changes noted at the disc level. Dr. Worobec noted
that appellant followed the typical pattern associated with this condition and on many occasions
by a variety of physicians it had been recorded that she had no motor, sensory or reflex changes
and that her spinal motions were minimally altered. He opined that appellant’s work-related
disability initially in 1991 was due to a stress strain which had long subsided. Dr. Worobec also
stated that the August 1995 work injury produced a mild strain. He opined that neither of those
injuries produced any long-term disability. Dr. Worobec noted that appellant’s physical status
had changed appreciably since 1991 as she was now a Grade 2 diabetic, had thyroid cancer, had
a major portion of the thyroid gland removed and had hypothyroidism. He opined that appellant
could not return to any work activities due to her present medical conditions produced by
endocrine imbalance, diabetes, cancer of the thyroid and generalized deconditioning.
Dr. Worobec noted that she did not show any true radicular signs. He opined that the work
injuries appellant sustained were temporary and could be classified as strain/sprain without any
radicular involvement. Dr. Worobec further noted that the physical examination he conducted
indicated no radicular problems originating in the lumbar spine.
Following additional testing,2 Dr. Worobec stated in an October 29, 2007 addendum
report that electrodiagnostic testing of both lower extremities were within normal limit with no
evidence of lumbosacral radiculopathy or peripheral neuropathy.
On January 23, 2008 the Office proposed terminating appellant’s compensation benefits
based on the report of Dr. Worobec, the impartial medical examiner.
In a February 16, 2008 letter, appellant disagreed with the proposed termination. She
contended that her December 15, 1991 work injury resulted in a herniated disc. Appellant
enclosed copies of a March 18, 1996 EMG; a January 31, 1992 MRI scan; and a May 10, 2005
nerve conduction report.
In a June 28, 1996 letter, Dr. Jimmy Lim, a Board-certified orthopedic surgeon, opined
that appellant’s December 15, 1991 work injury was a disc herniation and not merely a lumbar
sprain/strain. He advised that appellant had continuing complaints following the December 15,
1991 work injury and an MRI scan taken two months post injury showed a disc herniation at
L5-S1. Dr. Lim noted that appellant’s congenital posterior spinal fusion defect was not a
contributing factor to her current condition and symptoms.
In attending physician reports and clinic notes dated January 24, February 20 and
March 20, 2008, Dr. Katz opined that appellant was totally disabled due to discogenic disease
and lumbosacral radiculopathy related to her accepted work injuries.
By decision dated April 21, 2008, the Office terminated appellant’s wage-loss and
medical benefits effective that date.

2

An electromyogram (EMG) was performed for Dr. Worobec on October 22, 2007.

3

LEGAL PRECEDENT
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.3 Having determined that, an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.4 The Office’s burden of proof in terminating compensation includes
the necessity of furnishing rationalized medical opinion evidence based on a proper factual and
medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which required further medical treatment.7
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee the Secretary shall
appoint a third physician who shall make an examination.8 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.9
ANALYSIS
The Office accepted the condition of lumbosacral strain and lumbosacral radiculitis and
eventually placed her on the periodic rolls. It has the burden of justifying the termination of
appellant’s compensation for these medical conditions.
The Office found a conflict in medical opinion between appellant’s treating physician,
Dr. Katz, who stated that she was totally disabled due to her work injury and Dr. Smith, the
second opinion physician, who advised that appellant could work sedentary duty. It referred the
case to an impartial medical specialist, Dr. Worobec who concluded in reports dated October 22
and 29, 2007 that appellant’s current condition and disability were no longer related to either of
her work injuries. Dr. Worobec explained that the minor disc herniation noted on an MRI scan
3

Bernadine P. Taylor, 54 ECAB 342 (2003).

4

Id.

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

Roger G. Payne, 55 ECAB 535 (2004).

7

Pamela K. Guesford, 53 ECAB 726 (2002).

8

5 U.S.C. § 8123(a); F.R., 58 ECAB ___ (Docket No. 05-15, issued July 10, 2007); Regina T. Pellecchia,
53 ECAB 155 (2001).
9

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

4

was not responsible for her back complaints as the changes noted at the disc level were not
produced by trauma. Furthermore, a review of the medical evidence along with his examination
findings revealed no motor or sensory changes in the lower extremities or any sign of
radiculopathy involving the lower or upper extremities. Dr. Worobec found that the recent MRI
scan revealed degenerative disc changes and progressive changes of wear and tear. He
concluded that appellant’s work-related disability had long subsided and neither of her work
injuries produced any long-term disability. Dr. Worobec opined that appellant did not currently
have any residuals from her work injuries as there was no radicular problems originating in the
lumbar spine, which recent electrodiagnostic testing confirmed. He also addressed the role
appellant’s nonwork-related conditions play in appellant’s disability as well as the role of her
degenerative back condition. Dr. Worobec explained that appellant’s continuing condition and
disability was produced by degenerative and other conditions that were not caused by her
employment injuries. The Office relied on Dr. Worobec’s opinion in its April 21, 2008 decision,
which found that appellant had no residuals or continuing disability stemming from her workrelated employment injuries and was therefore not entitled to compensation benefits.
The Board finds that Dr. Worobec’s impartial medical opinion establishes that appellant’s
accepted conditions resolved without continuing disability or residuals from her accepted
employment injuries. His opinion is based on a thorough medical examination, a review of the
medical evidence of record in both of appellant’s cases and a thorough discussion of medical
tests performed. Dr. Worobec’s opinion is sufficiently probative, rationalized and based upon a
proper factual background. Therefore, the Office properly accorded Dr. Worobec’s opinion
special weight10 and his report establishes that residuals of appellant’s accepted conditions had
resolved.
Appellant submitted additional medical reports from Dr. Katz, who opined that appellant
was totally disabled from her discogenic disease and lumbosacral radiculopathy, which he
opined was causally related to her work injuries.11 The Board notes that he did not provide any
new findings or rationale concerning appellant’s ability to work or the continuation of her
accepted lumbosacral radiculopathy.
Additionally, Dr. Worobec found that recent
electrodiagnostic testing of both lower extremities were all within normal limits with no
evidence of lumbosacral radiculopathy or peripheral neuropathy. Furthermore, as Dr. Katz was
on one side of the conflict which was resolved by Dr. Worobec, his additional reports are
insufficient to overcome the weight accorded Dr. Worobec’s report as the impartial medical
specialist’s report or to create a new conflict with it.12
Appellant also submitted electrodiagnostic testing from 1992, 1996 and 2005 and a
June 28, 1996 report from Dr. Lim. This evidence was previously of record, predated the
proposed termination and was reviewed by Dr. Worobec, who provided a full discussion as to
10

Darlene R. Kennedy, 57 ECAB 414 (2006).

11

The Board notes that discogenic disease was not accepted by the Office as being employment related. The
Board notes that, for conditions not accepted by the Office as employment related, the claimant bears the burden of
proof to establish that the condition is causally related to the employment injury. Jaja K. Asaramo, 55 ECAB
200 (2004).
12

Richard O. Brien, 53 ECAB 234 (2001).

5

why the initial diagnosis of lumbar strain/sprain was correct and why the minor herniation noted
on MRI scan was not responsible for appellant’s current back complaints. Thus, these previously
considered reports are insufficient to overcome the opinion of Dr. Worobec.
Accordingly, the Board finds that the Office properly terminated appellant’s
compensation benefits effective April 21, 2008, as the weight of the medical evidence
established that her work-related conditions had resolved.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective April 21, 2008.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated April 21, 2008 is affirmed.
Issued: February 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIEL COMMAND, Fort Monmouth, NJ,
Employer
__________________________________________

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

Docket No. 12-916
Issued: September 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On March 20, 2012 appellant, through his attorney, filed a timely appeal from the
December 14, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a seven percent permanent impairment of his right arm, for which he received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on May 30, 2008 appellant, a 55-year-old supply systems analyst,
sustained a closed fracture of his right radius head due to a fall at work. Appellant returned to
his regular work without restrictions on May 31, 2008.2
In a July 17, 2008 report, Dr. Chalnick stated that appellant was status post nondisplaced
fracture of his right radius head and that his right arm was splinted for nearly four weeks after the
May 30, 2008 accident. He indicated that appellant’s right arm had full pronation, but lacked
about 10 degrees of extension and a few degrees of supination and flexion.
An August 7, 2008 examination by Dr. Chalnick revealed that appellant had a positive
Phalen’s sign and a negative Tinel’s sign in his right arm consistent with “potential carpal tunnel
syndrome.” Appellant had no atrophy or weakness in his right arm and had 5/5 grip strength.
On November 3, 2008 Dr. Scott C. Woska, an attending Board-certified physiatrist, indicated
that recent electrodiagnostic testing showed that appellant had mild median neuropathy at his
right wrist consistent with carpal tunnel syndrome. He stated that appellant appeared to have full
range of motion of his right elbow without instability or crepitus.3
In a December 3, 2008 report, Dr. David Weiss, an attending osteopath, determined that
appellant had 54 percent permanent impairment of his right arm under the standards of the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001). He reported physical examination findings, including the results of
range of motion and grip strength testing, and noted that the May 30, 2008 work injury was the
competent producing factor for the observed findings. Dr. Weiss indicated that appellant’s
overall right arm impairment was comprised of the combination of several ratings (using the
Combined Values Chart), including a 6 percent rating for 4/5 motor strength in the right biceps, a
10 percent rating for 4/5 motor strength in the right triceps, a 20 percent rating for right lateral
pinch deficit and a 31 percent rating for grade 2 sensory deficit in the right median nerve. He
found that maximum medical improvement was reached on December 3, 2008.
On March 6, 2009 Dr. Henry J. Magliato, a Board-certified orthopedic surgeon and an
OWCP medical adviser, noted that there was a marked difference in the findings observed by
Dr. Chalnick and Dr. Weiss. He noted that the objective medical evidence showed that appellant
had a lesser permanent impairment of his right arm than that found by Dr. Weiss. Dr. Magliato
recommended that appellant be referred to an impartial medical specialist.
OWCP determined that there was a conflict in the medical evidence between Dr. Weiss
and Dr. Magliato regarding the extent of appellant’s right arm impairment. In June 2009, it
2

In a May 6, 2008 report, Dr. David L. Chalnick, an attending Board-certified orthopedic surgeon, noted that
appellant reported that on May 2, 2008 he felt a ripping sensation in his right elbow while pushing a couch at home.
He indicated that the findings on physical examination were consistent with a right distal biceps tendon tear. On
May 27, 2008 Dr. Chalnick stated that the findings of recent magnetic resonance imaging (MRI) testing confirmed
that appellant sustained a right distal biceps tendon tear.
3

In July 2009, OWCP accepted, under a different claim file, that appellant sustained work-related bilateral carpal
tunnel syndrome and bilateral trigger finger.

2

referred appellant to Dr. Elliot C. Semet, a Board-certified orthopedic surgeon, for an impartial
medical examination and an opinion on the extent of the permanent impairment of his right arm.
In an August 3, 2009 report, Dr. Semet diagnosed status post radial head fracture of the
right elbow with bilateral carpal tunnel syndrome, status post biceps tendon tear, status post volar
ganglion removal (1999 surgery) and status post chronic post-traumatic medial and lateral
epicondylitis. He indicated that appellant’s impairment rating, based upon the fifth edition of the
A.M.A., Guides, was consistent with Dr. Weiss’ use of the A.M.A., Guides. Dr. Semet stated
that the difference between his and Dr. Weiss’ rating would be that “the motor strength deficit of
the biceps is not taken into account and therefore his value of six percent is not included.” There
was no injury to appellant’s right triceps tendon when his right radial head was injured and his
epicondylitis would not affect his biceps strength. Dr. Semet noted that appellant had a Class 2
to 3 sensory deficit which, at most, would be a 25 percent sensory impairment. He stated:
“In regards to the median nerve, below the mid forearm, attributing his motor
deficit to be part of his decreased lateral pinch strength. This would give him 25
percent of 39 or approximately 10 percent. This would give him a total combined
right upper extremity impairment of 24 percent as reviewed from the Combined
Value Chart on page 604.
“On examination of his right upper extremity on this particular day, I would give
the patient an impairment of 24 percent. However, noting that [sic] continued
compression neuropathy of his median nerve, I would expect this impairment
rating to continue to affect this patient and, in fact, he may become more impaired
if his median neuropathy is not addressed.”
In a March 12, 2010 letter, OWCP requested that Dr. Semet provide a supplemental
report which rated impairment based on the standards of the sixth edition of the A.M.A., Guides.
On June 15, 2010 OWCP received a copy of Dr. Semet’s August 3, 2009 report which
contained an addendum by Dr. Semet stating:
“I have reviewed my previous reports regarding Dr. David Weiss’s Regional
Independent Medical Evaluation, as well as Dr. David Chalnick’s notes. I have
reviewed the notes and now have the sixth edition of the [A.M.A., Guides] for the
evaluation of permanent impairment. There is no change in my evaluation. The
numbers were within a range and are unchanged by the [A.M.A., Guides] of the
[sixth edition]. I found no significant difference in my overall evaluation and my
opinions remain the same. It is of note that the other doctor’s evaluation came
from the [fifth edition] and you now want me to do it from the [sixth edition]. In
any event, there is no change in the evaluation of my percentage.”
In a July 14, 2010 note, Dr. Andrew A. Merola, a Board-certified orthopedic surgeon and
an OWCP medical adviser, indicated that Dr. Semet reported no change in his percentage
calculations. He stated, “Unfortunately, he does not summarize how he arrives at those
calculations so we cannot appropriately determine the schedule loss of use.”

3

In an August 31, 2010 letter, OWCP requested that Dr. Semet provide additional details
regarding his derivation of an impairment rating under the sixth edition of the A.M.A., Guides,
including the measurements he took and the tables he applied. It provided Dr. Semet 14 days from
the date of the letter to provide such clarification. Dr. Semet did not respond to OWCP’s letter
within the time allotted.
OWCP determined that there continued to be a conflict in the medical evidence regarding
the extent of appellant’s right arm impairment and referred him to Dr. Robert Dennis, a Boardcertified orthopedic surgeon, for an impartial medical examination.
The record includes an MEO23 iFECS report noting that appellant’s impartial medical
appointment was scheduled with Dr. Dennis on May 24, 2011. The record also contains a series
of screen captures showing the selection of Dr. Dennis through the computerized rotation process
of the Physicians Directory System (PDS).4
In a May 24, 2011 report, Dr. Dennis detailed appellant’s medical history, including
providing a description of the May 30, 2008 work injury. He noted that appellant reported
having carpal tunnel release surgery in April 2011 and that the trigger finger of the third finger of
his right hand had been medically corrected. Dr. Dennis stated that on May 2, 2008 appellant
had a right distal biceps tendon tear while pushing a couch and that surgery for this was not
performed due to his age and occupation. He reported findings on examination, including the
findings of range of motion testing for the right elbow. Appellant had 125 degrees of flexion, 15
degrees of extension, 65 degrees of pronation and 65 degrees of supination. Dr. Dennis stated
that, by MRI scan testing, clinical examination and history, appellant’s preexisting right distal
biceps tendon tear was responsible for the weakness of his biceps muscle function and that this
condition contributed to his limited range of elbow motion. Grip strength was normal, the length
of both arms was equal, the right elbow showed no effusion or crepitus and there were no clinical
findings of deformity about the right elbow. Dr. Dennis stated that he examined appellant for
carpal tunnel findings and noted that “there were none.” Phalen’s test and Finklestein’s test were
negative, there was no tenderness over the Canal of Guyon and there were no specific areas of
neurological hypesthesia or paresthesias in any of the fingers. Dr. Dennis also noted that he did
not observe any trigger finger findings. He stated, “The only functional loss that was identifiable
to the nondisplaced radial head fracture ‘is the range of motion loss.’” Dr. Dennis explained how
he arrived at an impairment rating for appellant’s right arm under the sixth edition of the A.M.A.,
Guides. He noted that appellant’s main diagnosis-based condition was the right distal head
fracture which was a class 1 condition under Table 15-4 (Elbow Regional Grid) on page 399, but
determined that his right arm impairment should be calculated under the range of motion
method. Dr. Dennis referenced Table 15-33 on page 474,5 noting that appellant’s 125 degrees of
flexion equaled three percent impairment, his 15 degrees of extension equaled two percent
impairment, his 65 degrees of pronation equaled one percent impairment and his 65 degrees of
supination equaled one percent impairment. These figures were added to total seven percent
right arm impairment. Dr. Dennis then found that appellant had a functional grade modifier of
4

See infra notes 21, 22.

5

Dr. Dennis mentioned Figure 15-13 on page 462, but it is clear from the resultant impairment ratings for limited
elbow motion that the impairment calculations were derived from Table 15-33.

4

one and a physical examination grade modifier of one and determined, by applying Table 15-35
and Table 15-36 on page 477 that there was no need to adjust the total impairment found due to
limited right elbow motion. Therefore, appellant had a total right arm impairment of seven
percent.6
In a June 15, 2011 report, Dr. Magliato stated that he agreed with Dr. Dennis’ assessment
that appellant had seven percent permanent impairment of his right arm under the standards of
the sixth edition of the A.M.A., Guides.
In a June 27, 2011 award of compensation, OWCP granted appellant a schedule award
for seven percent permanent impairment of his right arm. The award ran for 21.84 weeks from
December 3, 2008 to May 4, 2009 and was based on the opinion of Dr. Dennis.
Appellant requested a telephonic hearing with an OWCP hearing representative regarding
his schedule award claim. During the October 13, 2011 hearing, counsel argued that Dr. Dennis
did not properly take into account appellant’s preexisting right arm condition of right biceps
tendon tear or his accepted condition of right carpal tunnel syndrome in calculating his right arm
impairment.
In a December 14, 2011 decision, an OWCP hearing representative affirmed OWCP’s
June 27, 2011 decision.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.10 It is well established that in determining the amount of a
schedule award for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body are to be included.11
6

Dr. Dennis determined that appellant reached maximum medical improvement on December 3, 2008.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

9

Id.

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3(a)(3) (January 2010). This portion of OWCP procedure provides that the impairment rating
of a given scheduled member should include “any preexisting permanent impairment of the same member or function.”

5

In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the elbow, reference is made to Table 15-4 (Elbow
Regional Grid) beginning on page 398.12 Table 15-4 also provides that, if loss of elbow motion
is present, impairment may alternatively be assessed using section 15.7 (range of motion
impairment). Such a range of motion impairment stands alone and is not combined with a
diagnosis-based impairment.13
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”14 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.15 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.16
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
his original report. However, when the impartial specialist is unable to clarify or elaborate on his
original report or if his supplemental report is also vague, speculative, or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second impartial
specialist for the purpose of obtaining his rationalized medical opinion on the issue.17
It is well established that OWCP procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those
certified by the American Medical Association and American Osteopathic Association.18 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, OWCP has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the
appearance that the selected physician’s opinion was biased or prejudiced.19 The procedures
12

See A.M.A., Guides 398-400 (6th ed. 2009).

13

Id. at 400.

14

5 U.S.C. § 8123(a).

15

William C. Bush, 40 ECAB 1064, 1975 (1989).

16

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

17

Harold Travis, 30 ECAB 1071, 1078 (1979).

18

See A.R., Docket No. 09-1566 (issued June 2, 2010); LaDonna M. Andrews, 55 ECAB 301 (2004).

19

See Raymond J. Brown, 52 ECAB 192 (2001).

6

contemplate that impartial medical specialists will be selected from Board-certified specialists in
the appropriate geographical area on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.20 OWCP’s procedures
provide that the selection of referee physicians (impartial medical specialists) is made through a
strict rotational system using appropriate medical directories. The procedure manual provides
that the PDS should be used for this purpose wherever possible.21 The PDS is a set of standalone software programs designed to support the scheduling of second opinion and referee
examinations. The PDS database of physicians is obtained from the American Board of Medical
Specialties which contains the names of physicians who are Board-certified in certain
specialties.22
ANALYSIS
OWCP accepted that on May 30, 2008 appellant sustained a closed fracture of his right
radius head due to a fall at work. In July 2009, it accepted, under a different claim file, that
appellant sustained work-related bilateral carpal tunnel syndrome and bilateral trigger finger. On
June 27, 2011 OWCP granted appellant a schedule award for seven percent permanent
impairment of his right arm. The award was based on the May 24, 2011 report of Dr. Dennis, a
Board-certified orthopedic surgeon who served as an impartial medical specialist.
The Board finds that OWCP properly determined that there was a conflict in the medical
evidence regarding the extent of appellant’s right arm impairment between Dr. Weiss, an
attending osteopath, and Dr. Magliato, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser.23 OWCP properly referred appellant to Dr. Dennis for an impartial
medical examination and opinion on this matter.
On appeal, counsel argued that appellant should not have been referred to Dr. Dennis but
rather should have been issued a schedule award based on the opinion of Dr. Semet, a Boardcertified orthopedic surgeon who served as the first impartial medical specialist. Dr. Semet
found that appellant had 24 percent of his right arm. The Board notes, however, that OWCP
provided Dr. Semet two opportunities to clarify the rationale for his impairment under the
appropriate standards of the A.M.A., Guides, but that he failed to provide such clarification.
Therefore, OWCP properly referred appellant to Dr. Dennis to resolve the continuing conflict in
the medical opinion evidence.24
20

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

21

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).
The Board notes that, as of July 2011, the Medical Management Application in the Integrated Federal Employees’
Compensation System (iFECS) replaced the prior PDS selection procedure for an impartial medical specialist. Id. at
Chapter 3.500.5 (July 2011).
22

Id. at Chapter 3.500.7 (September 1995, May 2003).

23

Dr. Weiss determined in a December 3, 2008 report that appellant had a 54 percent permanent impairment of
his right arm. In contrast, Dr. Magliato found on March 6, 2009 that appellant had a lesser impairment of his right
arm.
24

See supra note 17.

7

On appeal, counsel also argued that there was insufficient documentation to show that
OWCP followed its procedures in selecting Dr. Dennis as the impartial medical specialist.
However, the Board finds that the selection process was documented by a series of screen
captures showing the selection of Dr. Dennis through the computerized rotation process of the
PDS. This evidence reflects that the medical scheduler properly applied OWCP medical
management software to make the impartial medical selection.25
The Board finds that the weight of the medical evidence regarding appellant’s right arm
impairment rests with the well-rationalized opinion of Dr. Dennis, the impartial medical
specialist, who properly found that appellant had a seven percent permanent impairment of his
right arm.
In his May 24, 2011 report, Dr. Dennis noted that appellant’s main diagnosis-based
condition was the right distal head fracture under Table 15-4 on page 399, but explained that his
right arm impairment should be calculated under the range of motion method.26 He properly
found that, under Table 15-33 on page 474, appellant’s 125 degrees of flexion equaled three
percent impairment, his 15 degrees of extension equaled two percent impairment, his 65 degrees
of pronation equaled one percent impairment and his 65 degrees of supination equaled one
percent impairment. These figures were added up to a total right arm impairment of seven
percent and Dr. Dennis then correctly found, by applying Table 15-35 and Table 15-36 on page
477, that there was no need to adjust the total impairment found due to limited right elbow
motion. Therefore, appellant had a total right arm impairment of seven percent.27
Before OWCP and on appeal, counsel argued that Dr. Dennis did not properly take into
account appellant’s preexisting right arm condition of right biceps tendon tear or his accepted
condition of right carpal tunnel syndrome in calculating his right arm impairment. The Board
notes that Dr. Dennis adequately considered these conditions in arriving at his impairment rating.
He noted that appellant did not show any signs of the work-related right carpal tunnel syndrome
and right trigger finger. Dr. Dennis recognized the existence of appellant’s preexisting right
biceps tendon rupture and specifically stated that any deficits caused by this condition were
included in the impairment ratings for limited elbow motion.
For these reasons, appellant did not show that he has more than a seven percent
permanent impairment of his right arm. He may request a schedule award or increased schedule
award based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.

25

See W.H., Docket No. 12-1599 (issued January 17, 2013); P.G., Docket No. 11-76 (issued January 17, 2012).
The evidence does not show that any physician was bypassed prior to the selection of Dr. Dennis.
26

See supra note 13. The Board notes that the maximum rating for a distal head fracture is five percent. See
A.M.A., Guides 399, Table 15-4.
27

Moreover, Dr. Magliato indicated on June 15, 2011 that he agreed with Dr. Dennis’ assessment that appellant
had a seven percent permanent impairment of his right arm under the standards of the sixth edition of the A.M.A.,
Guides.

8

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a seven percent permanent impairment of his right arm, for which he received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
NATIONAL AERONAUTICS & SPACE
ADMINISTRATION, GODDARD SPACE
FLIGHT CENTER, Greenbelt, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-825
Issued: September 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 28, 2014 appellant, through his attorney, filed a timely appeal of a
February 21, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his request for reconsideration. As more than 180 days elapsed from issuance
of the last merit decision of November 30, 2012 to the filing of this appeal, the Board has no
jurisdiction over the merits of the case pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 501.3(e).

On appeal, appellant’s attorney asserts that OWCP did not analyze relevant, new legal
arguments presented on reconsideration.
FACTUAL HISTORY
On September 11, 2012 appellant, then a 54-year-old wheelchair-bound satellite
communications engineer, filed a traumatic injury claim alleging that he broke his leg on
September 4, 2012 when he fell from his wheelchair while exiting an employing establishment
taxi. He stopped work that day and did not return.
The medical evidence of record reveals that appellant, who has muscular dystrophy, was
admitted to the hospital from the emergency room on September 4, 2012 where a comminuted
mildly displaced fracture of the right femur was diagnosed. On September 10, 2012 he
underwent open reduction internal fixation of the fracture and was transferred to a skilled nursing
facility on September 19, 2012.
In letters dated October 25, 2012, OWCP informed appellant of the evidence needed to
support his claim. It also requested that the employing establishment respond regarding the
circumstances of the injury.
In correspondence dated November 9, 2012, Myrtis Coggins, an injury compensation
specialist, advised that appellant was on the premises of the employing establishment at the time
of injury. Appellant’s scheduled tour of duty was 8:00 a.m. to 4:30 p.m. and that, by their
records, the injury occurred at approximately 9:20 a.m. on September 4, 2012. In regard to
whether appellant was in the performance of duty, Ms. Coggins stated that he had returned to
work that day after an absence of approximately six months. Before reporting to his workstation
in Building 25, he first went to Building 1 to gather some information and then to Building 21.
He had not yet reported to his supervisor to receive a new work assignment. Ms. Coggins related
that appellant was riding in a government-owned vehicle for wheelchair transportation when the
injury occurred.
In a November 25, 2012 narrative statement, appellant noted that since the accident he
was home-bound and virtually bedridden. He stated that his time card showed that he was in pay
status throughout his time at the employing establishment prior to his accident on
September 4, 2012. Appellant arrived at work at 7:55 a.m. and first visited human resources in
Building 1 and spoke with someone about his absence. He then entered an employing
establishment vehicle to travel to Building 21 to renew overdue library books that he used in his
job as a satellite communications engineer. Building 21 also contained a credit union and
cafeteria and he would have also visited those but for the accident. The driver who took him to
Building 21 failed to properly deploy the wheelchair ramp which caused his wheelchair to drop,
throwing him to the sidewalk where he broke his right femur. On November 29, 2012 appellant
filed a claim for compensation commencing December 10, 2012. The employing establishment
noted that he received continuation of pay from September 5 to October 19, 2012 and sick leave
thereafter.

2

By decision dated November 30, 2012, OWCP denied appellant’s claim. It found that, by
going to Building 21 to return library books prior to reporting to work, he deviated from his
employment and was not in the performance of duty when injured.
On November 25, 2013 appellant, through his attorney, requested reconsideration. He
contended that he did not deviate from duty on September 4, 2012 when injured on the
employing establishment premises. Appellant asserted that coverage extended to a reasonable
interval before or after the work shift while the employee was on the premises and engaged in
preparatory or incidental acts. Counsel noted that appellant was injured after the start of his
work shift and on the employing establishment premises. After leaving human resources to
review his personnel file, appellant went to the library in Building 21 on employing
establishment premises, to renew technical manuals that he had used in his work. He was injured
on exiting from the employing establishment vehicle upon arrival at Building 21. Counsel
argued that, even though the manuals were not required, the employing establishment would
derive a benefit from appellant’s use of the two technical manuals.3 Appellant noted that he
would have also used the cafeteria in Building 21, which would be related to personal
ministration and within the course of employment.
In a decision dated February 21, 2014, OWCP denied appellant’s request for
reconsideration. It found the evidence and argument cumulative, that he submitted duplicates of
statements previously submitted.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.4 Section 10.608(a) of the Code of Federal Regulations (C.F.R.)
provides that a timely request for reconsideration may be granted if OWCP determines that the
employee has presented evidence and/or argument that meet at least one of the standards
described in section 10.606(b)(3).5 This section provides that the application for reconsideration
must be submitted in writing and set forth arguments and contain evidence that either: (1) shows
that OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant
legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent
new evidence not previously considered by OWCP.6 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements,
OWCP will deny the application for reconsideration without reopening the case for a review on
the merits.7
3

The attorney attached title pages of the two manuals: “Bayesian Reliability Analysis” and “Practical Electronic
Reliability Engineering.”
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(b).

3

ANALYSIS
The only decision before the Board in this appeal is the decision of OWCP dated
February 21, 2014 denying appellant’s application for review. Because more than 180 days
elapsed from the date of OWCP’s merit decision of November 30, 2012 to the filing of this
appeal with the Board on February 28, 2014, the Board lacks jurisdiction to review the merits of
this claim.8
On September 4, 2012 appellant sustained a fracture of the right femur when he fell from
a wheelchair ramp as he was exiting an employing establishment vehicle on the premises of the
employing establishment. He underwent corrective surgery on September 10, 2012 and was
transferred to a skilled nursing facility on September 19, 2012.9 Appellant, who had been absent
from work for approximately six months, reported to work that day at Building 1, where he
visited human resources then left to go to Building 21, to visit the library where he was going to
renew manuals he used in his work and to visit the cafeteria. OWCP denied the claim on
November 30, 2012, finding that he deviated from duty before work that day because he was
going to the library to renew books.
Appellant, through his attorney, requested reconsideration on November 25, 2013. The
attorney argued that appellant was in the performance of duty when injured on September 4,
2012, noting that the books he was renewing were technical manuals that he used in his work and
also indicating that he would also visit the cafeteria for a personal break.
The Board finds that appellant through counsel, has advanced legal arguments that are
relevant, not previously considered and pertinent to the issue of whether he was in the
performance of duty on September 4, 2012 when injured. On reconsideration appellant’s
attorney asserted that appellant did not deviate from duty on September 12, 2012 when he
travelled from Building 1, where he visited human resources, to Building 21, where he was
injured. As noted in Ms. Coggins’ statement, there is no question that appellant was on
employing establishment premises, travelling in an employing establishment vehicle when the
accident occurred. Appellant fell from the wheelchair ramp and broke his right femur. The facts
in this case indicate that Building 21 housed the library, credit union and cafeteria. Counsel
asserted that, even though appellant was not required to use the technical manuals he was going
to renew at the library his employer would derive substantial a benefit. He further asserted that
employment injuries that occurred during personal ministrations were within the performance of
duty, maintaining that appellant also intended to visit the cafeteria. As noted, these legal
arguments are relevant to the determination of whether appellant was in the performance of duty.
OWCP did not specifically address either of these contentions in the prior adjudication of his
claim.

8

See supra note 1.

9

The record does not contain an accident report describing the specific circumstances of the September 4, 2012
incident and does not indicate whether appellant returned to work.

4

As appellant has advanced a legal argument not previously considered by OWCP. He is
entitled to a review of the merits of his claim under section 10.606(b)(2) of OWCP’s
regulations.10 The case will be remanded for this purpose.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for a merit review
pursuant to section 8128(a) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this decision of the Board.
Issued: September 4, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

10

20 C.F.R. § 10.606(b)(2); see T.F., Docket No. 10-1701 (issued May 3, 2011).

5