United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 12-1874
Issued: March 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 13, 2012 appellant, through his attorney, filed a timely appeal from an
August 22, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) that
denied his claim for a schedule award. 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 the
decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
permanent impairment due to the accepted pulmonary embolism.
On appeal, appellant’s attorney asserts that the August 22, 2012 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 25, 2007 appellant, then a 58-year-old maintenance mechanic, was in an
employment-related motor vehicle accident. He stopped work that day. OWCP initially
accepted lumbar, thoracic and cervical sprains and appellant was placed on the periodic
compensation rolls. On November 7, 2007 it accepted displacement of cervical discs with
myelopathy at C4-5, C5-6 and C6-7, displacement of lumbar intervertebral discs at L4-5 and L5S1, bilateral post-traumatic shoulder sprain/strain, bilateral post-traumatic temporomandibular
joint dysfunction, bilateral rotator cuff syndrome, bilateral carpal tunnel syndrome, adjustment
disorder with mixed anxiety and depression and phobic disorder.
A November 4, 2008 computerized tomography (CT) scan of the chest demonstrated
extensive bilateral pulmonary emboli.
On December 31, 2008 appellant returned to a full-time modified position. On July 2,
2009 he was granted a schedule award for two percent impairment of the right arm due to carpal
tunnel syndrome and eight percent impairment of the left arm for his shoulder condition. In a
December 17, 2009 decision, OWCP’s hearing representative found that a conflict in medical
opinion arose between Dr. John W. Ellis, an attending Board-certified family physician, and
OWCP’s medical adviser regarding the extent of permanent impairment. The case was
remanded for impartial evaluation. Based on the opinion of Dr. William F. Bennett, a Boardcertified orthopedic surgeon, selected as the referee physician, appellant was granted an
additional three percent impairment of the right upper extremity on April 16, 2010.
On May 17, 2010 OWCP additionally accepted bilateral cubital tunnel syndrome,
concussions with brain injury, complex integrated cerebral function disturbance and acute
pulmonary embolism. Appellant filed a schedule award claim on June 20, 2010. In a
November 7, 2010 report, Dr. Ellis advised that he had last seen appellant on
September 15, 2009. The medical reports, including a CT scan and spirometry studies, from
appellant’s hospitalization in the fall of 2008 showed he developed a pulmonary embolism after
having an epidural steroid injection.2 Dr. Ellis advised that, at the time of appellant’s
examination, he was still short of breath. He diagnosed acute pulmonary embolism due to
sedentary lifestyle caused by the multiple accepted injuries. Dr. Ellis concluded that, under
Table 5-5 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),3 appellant had a class 3 or 36 percent whole person
impairment.
In a December 6, 2010 report, Dr. A.E. Anderson, Jr., OWCP’s medical adviser, noted
that Table 5-5 was used to rate asthma, not impairment due to a pulmonary embolism. Although
Dr. Ellis mentioned a spirometry study, it was not of record. Dr. Anderson concluded that the
appropriate table to rate appellant’s pulmonary impairment was either Table 5-4 or Table 4-14.
He recommended examination by a Board-certified pulmonologist.

2
3

Dr. Ellis also reported that appellant retired on August 2, 2009.
A.M.A., Guides (6th ed. 2008).

2

In December 2010, OWCP referred appellant to Dr. Leonard Y. Cosmo, Board-certified
in internal medicine and pulmonary disease, for a second opinion. In a January 22, 2011 report,
Dr. Cosmo reviewed the medical records and noted appellant’s complaints of productive cough,
wheezing, orthopnea and some shortness of breath. Respiratory examination demonstrated no
intercostal retractions, no use of accessory muscles, no wheezes, no rhonchi and no rales.
Dr. Cosmo advised that chest x-rays demonstrated clear, well-expanded lung fields and no
evidence for consolidations, significant atelectasis or effusion. He reported that pulmonary
function studies demonstrated forced vital capacity (FVC) of 2.92 liters or 53 percent of
predicted; forced expiratory volume (FEV) of 2.56 liters or 61 percent of predicted; FEV1/FVC
ration of 115 percent, for a moderately severe airflow limitation. Dr. Cosmo found that appellant
had reached maximum medical improvement on January 18, 2011 for acute pulmonary
embolism. Appellant had no significant anatomical loss to either lung, no significant radiologic
abnormalities and no subjective complaints to cause impairment. Dr. Cosmo stated that, while
some objective findings of impairment were noted on pulmonary function testing, this was
probably secondary to appellant’s severe obesity of 350 pounds.
Dr. Anderson, OWCP’s medical adviser, reviewed Dr. Cosmo’s report. He agreed that
maximum medical improvement was reached on January 18, 2011 and that, under Table 4-14 of
the A.M.A., Guides, appellant did not have any impairment pulmonary.
By decision dated February 23, 2011, OWCP found that appellant was not entitled to a
schedule award for the accepted pulmonary embolism.
On March 2, 2011 appellant, through his attorney, requested a hearing. He submitted a
June 3, 2010 pulmonary function study by Dr. Eli Freilich, Board-certified in internal medicine
and pulmonary disease. The study demonstrated a normal FEV2/FVC ratio post bronchodilators.
Vital capacity was 78 percent of predicted and total lung capacity was 82 percent of predicted.
FEV1 post bronchodilator was 3.03 liters or 69 percent of predicted and FVC was 3.91 or 71
percent of predicted. Diffusing capacity for carbon monoxide was 81 percent of predicted. Dr.
Freilich advised that the study was suggestive of a mild-to-moderate obstructive ventilatory
impairment with a significant response to inhaled bronchodilators.
Appellant also submitted records regarding his hospitalization from October 5 to 8, 2010
for complaints of shortness of breath. A CT scan demonstrated a pulmonary embolus in the right
upper and lower lobes. Appellant was seen in consultation by Dr. Thyagarajan Ananthakrishnan,
Board-certified in internal medicine and hematology, who diagnosed recurrent pulmonary
embolism, obesity, hypertension, dyslipidemia, obstructive sleep apnea, chronic back pain.
Dr. Salah Al-Andary, Board-certified in internal medicine and pulmonary disease, saw appellant
in consultation. He had seen appellant in November 2008 when he was admitted secondary to an
acute pulmonary embolism that resolved after treatment with Coumadin. Dr. Al-Andary
reported that he also saw appellant two weeks prior with no evidence of embolism. He noted the
CT findings and recommended weight loss, increased activity and indicated that appellant could
require Coumadin for life.
By decision dated May 4, 2011, OWCP’s hearing representative noted that Dr. Ellis had
submitted an additional report. She vacated the February 23, 2011 decision and remanded the
case for a supplementary report from Dr. Cosmo.

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In a May 18, 2011 report, Dr. Cosmo reviewed the June 3, 2010 pulmonary function
study and a test performed in his office on January 22, 2011. He concluded that appellant’s work
injuries, including pulmonary embolism, would not have any impact on either of the pulmonary
studies. On June 3, 2011 Dr. Anderson, OWCP’s medical adviser, noted that the criteria for
rating pulmonary impairment due to pulmonary embolism were found at Table 4-14 of the
A.M.A., Guides under the objective standard pulmonary artery pressure. He stated that
Dr. Cosmo did not use Table 4-14 or list an objective standard, such as Doppler
electrocardiography. Dr. Anderson recommended additional testing.
OWCP referred appellant for an echocardiogram. An August 23, 2011 echocardiogram
demonstrated normal left ventricular size with preserved systolic function, mild concentric left
ventricular hypertrophy with diastolic dysfunction, grossly normal right-sided structures, aortic
valve sclerosis without stenosis, trace mitral and tricuspid insufficiency and normal pulmonary
artery systolic pressure of approximately 30.4
In an October 8, 2011 report, Dr. Cosmo reviewed the August 23, 2011 echocardiogram.
Due to the fact that appellant had normal pulmonary arterial pressure on the study, under Table
4-14, he was rated at class 0. Dr. Cosmo noted that based on appellant’s echocardiogram
findings, together with the medical evidence of record, appellant had no pulmonary impairment.
On October 17, 2011 Dr. Eric Puestow, OWCP’s medical adviser Board-certified in
internal medicine and endocrinology, reviewed the medical record. He agreed with Dr. Cosmos’
conclusion that appellant had no (zero percent) impairment. The echocardiogram provided the
key factor in this assessment and the date of maximum medical improvement would be
September 12, 2011.
By decision dated October 25, 2011, OWCP denied appellant’s claim for a schedule
award, finding that the medical evidence failed to establish pulmonary impairment.
On November 2, 2011 counsel requested a hearing. In a December 8, 2011 report,
Dr. Kevin Trangle, Board-certified in internal and occupational medicine, reviewed the medical
record. He noted that appellant had gained over 60 pounds following the employment injury,
and advised that it would be more appropriate to use Table 5-4, Pulmonary Dysfunction, in
assessing appellant’s pulmonary impairment. Dr. Trangle rated appellant at class 2, stating that
he had a restrictive airway disease based on his FVC and FEV1 findings. Appellant fell in the
midrange or a C classification for a 17 percent impairment of the whole person, noting that there

4

The report was dated September 12, 2011. In a treatment note dated August 24, 2011, Dr. Ali Saifi, Boardcertified in internal medicine, noted that appellant was seen for rectal bleeding.

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was no further data to modify the rating. Dr. Trangle stated that he utilized the fifth edition of
the A.M.A., Guides and concluded:
“The basis of this assumption of restrictive airway disease being due to his injury
is the same basis for the pulmonary embolism being allowed within the context of
this injury, namely that his sedentary lifestyle following his injury led him to
become inactive and sedentary leading with subsequent pooling of blood and an
eventual pulmonary embolism; also the same inactive and sedentary life style led
to substantial weight gain causing his restrictive airway disease.”
A hearing was held on February 16, 2012.5 By decision dated May 7, 2012, OWCP’s
hearing representative affirmed the October 25, 2011 decision. She found that the weight of the
medical evidence rested with the opinion of the medical adviser, noting that Dr. Trangle utilized
the fifth edition of the A.M.A, Guides, rather than the sixth edition.
On June 21, 2012 appellant, through counsel, requested reconsideration. In a June 11,
2012 report, Dr. Trangle advised that his December 8, 2011 report contained a typographical
error, as he did not use the fifth edition of the A.M.A, Guides to rate appellant’s impairment, but
used the sixth edition. He attached a copy of Table 5-4 with his annotated impairment analysis
and indicated that maximum medical improvement was reached in 2010.
On July 12, 2012 Dr. Anderson, OWCP’s medical adviser, reviewed the medical record.
He found that maximum medical improvement was reached on September 12, 2011, the date of
the echocardiogram. As the accepted condition was pulmonary embolism and infarction, the
table to use for rating impairment was Table 4-14, as provided at pages 71 and 72 of the sixth
edition of the A.M.A., Guides. Dr. Anderson found that appellant had normal pulmonary artery
systolic pressure on the September 12, 2011 echocardiogram. Under Table 4-14, he would be
rated at class 0, with an impairment rating of zero percent.
In a merit decision dated August 22, 2012, OWCP denied modification of the prior
OWCP decisions, finding that the weight of the medical evidence rested with the opinion of
Dr. Anderson, OWCP’s medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing federal regulations6 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 for all claimants, OWCP has adopted
5

Although appellant was present at the hearing, he did not testify. OWCP’s hearing representative and counsel
discussed Dr. Trangle’s report. Appellant thereafter submitted a February 10, 2012 treatment note from Dr. Saifi
that did not include an impairment discussion.
6

20 C.F.R. § 10.404. See 5 U.S.C. § 8107.

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the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 OWCP procedures provide that, after obtaining all necessary medical
evidence, the file should be routed to the medical adviser for an opinion concerning the nature
and percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10
ANALYSIS
Appellant was in an employment-related motor vehicle accident on April 25, 2007 and
OWCP accepted various employment-related conditions. He first had a pulmonary embolism
after an epidural injection in October 2008. On May 17, 2010 OWCP accepted acute pulmonary
embolism. The Board finds that appellant has not established permanent impairment based on
the accepted pulmonary embolism.
Dr. Cosmo, a Board-certified pulmonologist, provided a second-opinion evaluation. In a
January 22, 2011 report, he advised that appellant reached maximum medical improvement on
January 18, 2011 for acute pulmonary embolism. Dr. Cosmo noted that appellant had no
significant anatomical loss to either lung, no significant radiologic abnormalities and no
subjective complaints to cause impairment. While appellant had objective findings of
impairment on pulmonary function testing, this was secondary to his severe obesity of 350
pounds. On May 18, 2011 Dr. Cosmo reviewed both the January 3, 2010 and January 22, 2011
pulmonary function studies. He concluded that appellant’s work injuries, including pulmonary
embolism, would not have an impact on pulmonary function. In an October 8, 2011 report,
Dr. Cosmo reviewed an August 23, 2011 echocardiogram. He advised that, because appellant
had normal pulmonary arterial pressure on the study, under Table 4-14, he would be at class 0
and had no pulmonary impairment.
Dr. Anderson and Dr. Puestow, OWCP’s medical advisers found that appellant’s
accepted pulmonary embolism should be rated under Table 4-14, Pulmonary Artery Diseases.11
Pulmonary embolism is defined as the closure of the pulmonary artery or one of its branches by
an embolus, sometimes associated with pulmonary infarction.12

7

Id.

8

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

9

Supra note 3 at 3, section 1.3, “The [ICF] Disability and Health: A Contemporary Model of Disablement.”

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
11

A.M.A., Guides 72.

12

Dorland’s Illustrated Medical Dictionary, 29th ed. (2000).

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Section 4.9 of the A.M.A., Guides provides guidance for rating impairment due to
diseases of the pulmonary artery.13 It states that pulmonary emboli and obesity can affect the
presence of pulmonary artery hypertension and must be considered in evaluating impairment.
Section 4.9 further states that pulmonary hypertension is typically diagnosed on echocardiogram,
and the criteria for evaluating diseases of the pulmonary artery are found in Table 4-14.14 Table
4-14 indicates that normal pulmonary artery pressure is less than 40.15 The August 23, 2011
echocardiogram found that appellant’s pulmonary artery systolic pressure was approximately 30.
On July 16, 2012 Dr. Anderson, an OWCP medical adviser, reviewed the medical record. Based
on appellant’s normal pulmonary artery systolic pressure, as found on the echocardiogram, he
had no impairment under Table 4-14. The Board finds that Dr. Cosmo and the medical advisers
properly utilized Table 4-14 to rate appellant’s pulmonary impairment. OWCP properly found
that appellant had no ratable impairment due to the accepted pulmonary embolism.
While the record contains pulmonary function tests with abnormal readings, these studies
do not indicate the cause for the abnormality. In a November 7, 2010 report, Dr. Ellis noted that
the pulmonary embolism was due to appellant’s sedentary lifestyle. He utilized Table 5-5,
Asthma, in findings that appellant had a 36 percent whole person impairment. On December 8,
2011 Dr. Trangle noted that appellant had gained over 60 pounds following the employment
injury. He indicated that appellant’s inactive and sedentary life style led to this weight gain
which caused restrictive airway disease. Dr. Trangle maintained that Table 5-4, Pulmonary
Dysfunction, should be used in rating appellant’s pulmonary condition. As noted, the Board
finds the weight of medical opinion represented by Dr. Cosmo and Dr. Anderson, who utilized
Table 4-14, to rate impairment based on the accepted pulmonary embolism.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award for the
accepted pulmonary embolism.

13

A.M.A., Guides 71.

14

Id.

15

Id. at 72.

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ORDER
IT IS HEREBY ORDERED THAT August 22, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 22, 2013
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dacono, CO, Employer
__________________________________________

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

Docket No. 12-1107
Issued: January 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 24, 2012 appellant filed a timely appeal from the November 21, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her
reconsideration request. As more than 180 days elapsed from the issuance of OWCP’s May 26,
2011 merit decision to the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review only the November 21, 2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s September 5, 2011
reconsideration request.
FACTUAL HISTORY
On August 27, 2010 appellant, a 28-year-old rural carrier, filed a traumatic injury claim
alleging that she injured her back on August 26, 2010 while lifting a full tray of mail, turning and
placing it in a hamper.
1

5 U.S.C. § 8101 et seq.

In a November 5, 2010 decision, OWCP denied appellant’s claim for workers’
compensation benefits. It found that the August 26, 2010 incident occurred as alleged, but that
she did not submit a well-reasoned medical opinion explaining how that specific incident caused
her diagnosed back condition. OWCP noted that appellant had a recent history of chronic back
pain.
On February 22, 2011 Dr. Nicholee Theiss, Board-certified in family medicine, advised
that she was appellant’s primary care physician for several years. She noted that appellant had a
history of chronic thoracic back pain due to a bulging disc at T11-12. When Dr. Theiss
examined appellant on September 8, 2010 following the work injury, not only was her thoracic
back pain exacerbated, but she now had left lumbar back pain and radicular symptoms. Her
examination showed limited range of motion and tenderness in those areas.
Dr. Theiss noted that emergency room x-rays were reportedly normal. An imaging study
showed mild disc degeneration and moderate bilateral facet arthritic changes at L4-5 resulting in
mild central canal stenosis and narrowing of the exit zones for the L5 nerve roots. “As supported
by my findings on September 8, 2010, it is my medical opinion that not only did the injury
sustained on August 26, 2010 exacerbate her chronic thoracic back pain but it also caused new
lumbar back pain with radiculopathy.”
OWCP reviewed the merits of appellant’s claim and denied modification of its prior
decision. It found that none of the medical evidence provided her physician’s opinion, with
medical rationale and objective findings, supporting a causal relationship between the August 26,
2010 incident and her diagnosed back condition. OWCP noted that pain was generally a
symptom and not a firm medical diagnosis. More specifically, it found that the medical evidence
did not explain how lifting and turning with a tray of mail caused appellant’s current condition
“in light of the fact that it’s clear you have a preexisting condition of osteoarthritis of the thoracic
vertebrae with bulged discs and scoliosis.”
On September 5, 2011 appellant requested reconsideration. She submitted Dr. Theiss’
August 18, 2011 report. Dr. Theiss explained that, prior to the August 26, 2010 injury, appellant
did not have any low back pain or radicular symptoms. Since the injury, however, she continued
to have constant pain in the low back and left leg. Appellant continued to have intermittent
paresthesias and numbness in the left leg as well, secondary to the injury. Dr. Theiss stated: “I
believe that when [appellant] lifted and turned with the tray of mail this day, the weight of the
tray on the vertebral column and the subluxation of the vertebrae on each other impinged upon
nervous system tissue and damaged this nervous system tissue permanently, resulting in pain and
radiculopathy.” He noted that appellant’s examination consistently showed tenderness and her
symptoms were unchanged despite maximum medical management.
In a November 21, 2011 decision, OWCP denied appellant’s reconsideration request
without reviewing the merits of her case. It found Dr. Theiss’ August 18, 2011 report
duplicative.
On appeal, appellant argued that she was injured on the job and deserves compensation.
She believes that her physician has given excellent evidence.

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LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.2 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must 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.3
A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.4 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.5
ANALYSIS
As noted, appellant did not file a timely appeal of OWCP’s most recent merit decision of
May 26, 2011. For that reason, the Board has no authority to review that decision or the merits
of her injury claim. The only decision that the Board may review is OWCP’s November 21,
2011 nonmerit decision denying appellant’s reconsideration request. The only issue that the
Board may, therefore, decide is whether OWCP properly denied that request.
To support her reconsideration request, appellant submitted the August 18, 2011 report of
Dr. Theiss, her attending physician, who discussed, for the first time, the physiological
mechanism of the August 6, 2010 injury. Dr. Theiss explained that, when appellant lifted and
turned with the tray of mail, the weight of the tray on the vertebral column and the subluxation of
the vertebrae on each other impinged upon nervous system tissue and damaged this tissue
permanently, resulting in pain and radiculopathy. This report provided additional explanation on
the issue of causal relationship.
The Board has conducted a limited review of Dr. Theiss’ February 22, 2011 report and
can find no similar explanation of the mechanism of injury. The rationale Dr. Theiss provided in
her August 18, 2011 report is new and relevant.6 It directly addresses OWCP’s previous finding
that the medical evidence did not explain how lifting and turning with a tray of mail caused
appellant’s current condition.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606.

4

Id. § 10.607(a).

5

Id. § 10.608.

6

See Fed. R. Evid. 401 (“relevant evidence” means evidence having any tendency to make the existence of any
fact that is of consequent to the determination of the action more probable or less probable than it would be without
the evidence).

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To obtain a reopening of her case for a merit review, appellant need not submit evidence
that cures all the deficiencies in her claim and establishes her entitlement to compensation.7 She
need only submit evidence that is relevant and pertinent new evidence not previously considered
by OWCP.8 The Board finds that appellant has submitted such evidence and is therefore entitled
to a merit review of her case. The Board set aside OWCP’s November 21, 2011 decision
denying reconsideration and will remand the case for a merit review and de novo decision on her
injury claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s September 5, 2011
reconsideration request. Appellant is entitled to a merit review of her case.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2011 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action in
conformance with this decision.
Issued: January 22, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7

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

8

See 20 C.F.R. § 10.606(b)(3)(iii). See also Mark H. Dever, 53 ECAB 710 (2002).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., claiming as son of J.M., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0615
Issued: November 5, 2018

Case Submitted on the Record

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

JURISDICTION
On January 30, 2018 appellant, through counsel, filed a timely appeal from an August 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the employee’s
death on December 27, 2010 occurred in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On March 4, 2011 appellant completed a claim for death benefits (Form CA-5) alleging
that the death of his father, the employee who was employed as a postal clerk, was related to
“exposure” at work that caused a heart attack. A supervisor’s report of employee’s death (Form
CA-6) dated June 5, 2012 indicated that on December 26, 2010 the employee “punched out of
work” at 7:00 p.m. The supervisor reported that there was a snowstorm, the employee was seen
at 4:00 a.m. on December 27, 2010 in the employing establishment cafeteria, and the employee’s
son had arranged to pick the employee up from work.
In a December 28, 2010 memorandum, an employing establishment supervisor reported
that the employee was a clerk and on December 26, 2010 had asked to leave work early due to a
snowstorm that occurred earlier in the day. According to the supervisor, the police reported that
the employee had called his son at approximately 5:00 a.m. on December 27, 2010 from the
employing establishment cafeteria. The son was supposed to pick up the employee at the
intersection of McDermott Drive and County Road, but had not picked up his father. The
supervisor reported that the employee’s body was found in “Veterans Plaza at the entrance to
McDermott Drive.”
Appellant submitted an autopsy report dated December 30, 2010. The medical examiner
reported that the cause of the employee’s death was arteriosclerotic cardiovascular disease and
diabetes mellitus, with “exposure to cold” as a contributory cause.
By decision dated August 27, 2013, OWCP denied appellant’s claim for compensation
based on the factual component of fact of injury. It found that the death did not occur until after
the employee had left the employing establishment.
On May 30, 2014 appellant, through counsel, requested reconsideration and submitted a
May 23, 2014 report from Dr. Malcolm Hermele, an internist. Dr. Hermele provided a history that
it appeared the employee was waiting on the employing establishment premises for a ride from his
son, at an area called Memorial Park, and “essentially froze to death.” He wrote that it was his
understanding that the employee had a massive heart attack and was caught in a blizzard.
Dr. Hermele indicated that he had reviewed incident reports and witness statements. He opined
that “the cold weather contributed to and was the proximal cause of a fatal arrhythmia and
myocardial infarction in [the employee’s] already compromised cardiovascular system. This event

3

Docket No. 16-1725 (issued May 11, 2017).

2

occurred while he was on the [employing establishment] premises on or about [December 27 to
28, 2010].”
On March 25, 2015 additional evidence was submitted in support of reconsideration. An
incident report dated December 28, 2010 from the “inspection postal police force” indicated that
the employee’s son reported that he talked with his father by cellphone at 5:00 a.m. on
December 27, 2010. The employee was at the employing establishment and requested to be picked
up. When appellant could not locate the employee at the agreed upon destination, the Military
Park section of the employing establishment facility was searched and the employee’s body was
discovered. A “preliminary serious accident report” indicated that the body was found
approximately 50 feet from the McDermott Drive employee entrance.
Three witness statements were submitted to the record. In a December 29, 2010 statement,
a coworker reported that on December 27, 2010 the employee left the employing establishment
cafeteria and at about 7:00 a.m. she saw him outside in a crosswalk in front of a stopped truck.
The coworker indicated that the employee was “making backward strides” toward the facility
entrance. A second coworker submitted an undated statement that at 10:00 p.m. on December 26,
2010 the employee was in the cafeteria trying to contact someone by telephone. The witness
indicated that at 6:00 a.m. the employee was walking outside to the “guard shack” when he fell.
According to the witness, he asked the employee if he was okay, the employee responded yes, and
asked him to close the guard shack door. In addition, the witness asked the employee if he wanted
a ride home, and was told no. A third witness submitted an undated statement, writing that the
employee received a call at approximately 3:00 a.m. on the morning of December 27, 2010. The
witness wrote that at 6:00 a.m. when “we were going home” the employee fell in snow, was asked
if he needed a ride, but he responded that he did not.
By decision dated September 23, 2015, OWCP denied modification of its August 27, 2013
decision. It found that the employee was not on the clock, and the evidence did not establish that
his work, or presence in the parking lot, contributed to his death. OWCP noted that the death did
not occur within a reasonable time frame after he stopped work, and weather events did not
constitute a special hazard.
On October 15, 2015 appellant, through counsel, requested reconsideration. The evidence
submitted in support thereof included a statement from appellant, who asserted that his father
called him at 2:00 a.m. on December 27, 2010 and reported that the employing establishment
parking lot was not plowed and he could not leave because of the snow. Appellant indicated that
the employee stated that his car was stuck in the parking lot, and appellant told his father that he
could pick him up at 7:00 a.m. because the roads were not clear. According to appellant, he tried
to call his father at 5:30 a.m. to tell him that the roads still were not clear, but the employee could
not be located and did not have a cellphone. He wrote that the parking lot was not cleared until
4:00 p.m. on December 27, 2010 and he felt that the employee’s death was the result of his having
to remain at the employing establishment due to the snowstorm.
By decision dated March 10, 2016, OWCP denied modification of its September 23, 2015
decision. It found that the employee’s death did not arise out of his work duties and he was not in
the performance of duty. OWCP found that “although the [employee] was witnessed as being on
the premises, the [employee] did not pass away on the premises of the [employing establishment,]

3

but rather the day after his shift ended and in Veteran’s Plaza which is not owned by the [employing
establishment]. Accordingly, he was not performing any duties or assigned work at the time of his
death.”
On August 15, 2016 appellant, through counsel, appealed to the Board. By decision dated
May 11, 2017, the Board set aside the March 10, 2016 OWCP decision and remanded the case for
further findings. The Board found that OWCP had not sufficiently developed the record as to
whether the employee was found on the employing establishment’s premises. The Board also
found that OWCP failed to make adequate findings as to the circumstances related to the
snowstorm and whether the employee was expressly or impliedly required to remain at work.4
Following a June 23, 2017 development letter, OWCP received an August 15, 2017
response from the employing establishment. The employing establishment indicated that the
employee was found in the Military Park which was located within its premises. The employee
apparently walked from the guard shack, which is adjacent to the employee’s entrance, and walked
the road 3/10th of a mile from the guard shack, crossing Military Park approximately 50 feet off
McDermott Drive, where he was found. This area was to the right at the entrance to the parking
lot, which it owned and operated. The employing establishment indicated that the parking lot was
maintained by plowing and shoveling that night. It stated that it was not aware that the employee
had remained at work. The employing establishment also stated that it did not require that the
employee remain on the premises that day, nor did it require that any employee leave the premises.
By decision dated August 23, 2017, OWCP denied appellant’s claim, finding that the
employee was not in the performance of duty on December 27, 2010 even though he had remained
on the premises. Specifically, it found that the employee was not engaged in the performance of
his employment duties or doing something incidental thereto. Additionally, the employee had
remained an unreasonable amount of time after he ended his shift early and was found in an
unreasonable location due to the surrounding circumstances, namely a severe blizzard.
LEGAL PRECEDENT
The United States shall pay compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.5 An award of
compensation in a survivor’s claim may not be based on surmise, conjecture, or speculation or an
appellant’s belief that the employee’s death was caused, precipitated, or aggravated by the
employment.6
It is appellant’s burden of proof to submit sufficient evidence necessary for OWCP to make
a determination as to whether an employment incident occurred as alleged. The evidence must be
sufficient to establish whether the employee was in the course of federal employment at the time

4

Id.

5

5 U.S.C. § 8133 (compensation in case of death).

6

See Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

4

of the incident, so that a proper determination may be made as to whether an injury occurred while
in the performance of duty.7
An injury is determined to arise in the course of employment when it takes place within
the period of the employment, at a place where the employee reasonably may be, and while the
employee is fulfilling employment duties or is engaged in doing something incidental thereto.
Arising out of employment relates to the causal connection between the employment and the injury
claimed.8
Injuries arising on the premises may be approved if the employee was engaged in activity
reasonably incidental to the employment, such as preparatory or incidental acts associated with
leaving work.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that the
employee’s death on December 27, 2010 occurred in the performance of duty.
Appellant alleged that the employee’s death on December 27, 2010 was causally related to
“exposure” at work. The record indicates that the employee’s scheduled work hours were from
1:00 p.m. to 9:50 p.m. On December 26, 2010 he worked until 7:00 p.m. then he spent time in the
employing establishment’s cafeteria. Appellant asserted that the employee had his car in the
parking, lot, but was unable to leave due to a snowstorm. The employing establishment however
reported that the parking lot had been plowed during the night. On December 27, 2010 the
employee was outside at times during the morning hours, going to the “guard shack” and then at
7:00 a.m. was walking to meet his son for a ride home when he collapsed.
The employing establishment indicated that the employee’s body was found in the Military
Park which was part of its premises. As the employee’s death occurred on the premises of the
employing establishment, the issue is whether the incident occurred within a reasonable interval
after official working hours while the employee was engaged in preparatory or incidental acts
associated with leaving work.
The Board finds that, despite occurring on the premises, the employee’s death on
December 27, 2010 did not occur in the performance of duty. The occurrence of an incident on
the employing establishment premises which leads to an injury is insufficient, in itself, to give rise
to coverage under FECA as the employee must show not only that the injury encompasses the
work setting, but also that the injury occurred a reasonable interval before or after official working
hours while he was on the premises engaged in preparatory or incidental acts. What constitutes a

7

T.S., Docket No. 09-2184 (issued June 9, 2010).

8

B.C., Docket No. 09-0653 (issued December 24, 2009).

9

See A.B., Docket No. 15-0288 (issued May 21, 2015) (finding that a claimant had established that the incident
occurred a reasonable interval after clocking out of work when he was assaulted a few minutes after clocking out at
4:50 p.m.).

5

reasonable interval before work depends on both the length of time involved and the circumstances
occasioning the interval and the nature of the employee’s activity.10
The evidence of record does not establish that the employee was in the performance of his
regular or specially assigned work duties or engaged in other preparatory or incidents at the time
of his December 27, 2010 fatal heart attack. The employee had signed out of work early at
7:00 p.m. on December 26, 2010. He remained on the premises for approximately 11 hours and
was last seen by a witness at 6:00 a.m. walking towards the guard shack and at approximately
7:00 a.m. in the crosswalk in front of a stopped truck. The employee was believed to be waiting
for a ride from his son, who was on his way to pick him up at the intersection of McDermott Drive
and County Road. In Catherine Callen,11 the employee was found to be in the performance of
duty under FECA for an injury sustained on the employing establishment premises six hours after
the end of her regular shift, primarily because she remained on the premises to complete a project
at the request of her employing establishment. There is no evidence that the employing
establishment in this case expressly or impliedly required the employee’s presence on the premises
after his regular work hours on December 26, 2010. There is no evidence that the employee sought
approval from his supervisor to remain on the premises, and the employing establishment has
related that it was unaware that the employee in fact remained on premises through the early
morning hours of December 27, 2010. Accordingly, the Board finds that the employee’s presence
on the employing establishment premises the morning of his death was not reasonable.12
The facts and circumstances of this case indicate that the employee had not left the
employing establishment premises due to a snowstorm on December 26 and 27, 2010.
Accordingly, the issue becomes whether the employee’s death would not have occurred, but for
the fact that the conditions and obligations of his employment put him in the position where he
was injured.
In Doyle W. Rickett,13 the Board noted that The Law of Workers’ Compensation, identifies
three types of risks: risks distinctly associated with the employment; risks personal to the claimant;
and “neutral risks,” i.e., risks having no particular employment or personal character. It further
indicates that harms from the first risk are universally compensable and those from the second are
universally noncompensable; harms from the third risk are the subject of controversy in modern
compensation law, but there is increased acceptance for finding an injury arose in the performance
of duty when a condition of employment put the claimant in a position to be injured by the neutral
10

See P.S., Docket No. 13-370 (issued November 12, 2013); William W. Knispel, 56 ECAB 639 (2005);
Venicee Howell, 48 ECAB 414 (1997); Dwight D. Henderson, 46 ECAB 441 (1995); Arthur A. Reid, 44 ECAB 979
(1993); Nona J. Noel, 36 ECAB 329 (1984). Compare John F. Castro, Docket No. 03-1653 (issued May 14, 2004)
with George E. Franks, 52 ECAB 474 (2001). In cases concerning what constitutes a reasonable interval before or
after work, the Board has been influenced by the activities engaged in by the employees before or after work. In
Howell, the Board found coverage when the employee was injured five minutes after work while performing the
incidental task of submitting a job bid. However, in Noel, the Board denied coverage when the employee was injured
90 minutes before work while engaging in the personal activity of eating breakfast.
11

47 ECAB 192 (1995).

12

See B.R., Docket No. 11-153 (issued September 30, 2011).

13

Docket No. 95-0435 (issued November 6, 1996).

6

risk.14 The Board also noted in Doyle W. Ricketts that it has applied the positional risk doctrine
and has held that an injury arising in the course of employment from a neutral risk is compensable.
The Board finds that the above-described coverage under the “neutral risk” theory is not
applicable to the circumstances of the employee’s case, wherein his death allegedly occurred due
to exposure to weather conditions. Coverage under this theory is dependent on a reasonably clear
linkage between the neutral risk and the employment. There is no such indication in the
employee’s case that the harm he encountered, exposure to cold, was distinctly associated with his
employment. The employee had been off work for approximately 11 hours and was outside in
blizzard-like conditions for approximately 1 hour waiting for his son to pick him up. His
employment obligations did not place him outside in the storm to be injured by the neutral risk.
There is no evidence that the employing establishment had required that the employee
remain on the premises that day or required any employees to leave the premises. Additionally,
the evidence reflects that witnesses saw the employee outside near the guard shack at 6:00 a.m.
and 7:00 a.m. on December 27, 2010. As the employing establishment’s building remained open
to the employee, remaining outside in blizzard-like conditions for more than one hour is an
unreasonable amount of time. Thus, the Board finds that the amount of time the employee spent
outdoors during the storm on December 27, 2010 when he could have remained indoors or in the
guard shack mitigates against a finding that the neutral risk placed the employee outside to be
injured by the neutral risk.
Accordingly, the Board finds that appellant has not met his burden of proof to establish
that the employee’s death on December 27, 2010 was in the performance of duty.
CONCLUSION
The Board finds that the employee’s death on December 27, 2010 did not occur in the
performance of duty.

14

See A. Larson, The Law of Workers’ Compensation, sections 7.00, 7.30 (2016).

7

ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
SUPPORT ACTIVITY, New Orleans, LA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1101
Issued: September 11, 2007

Case Submitted on the Record

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

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from a November 30, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his emotional condition
claim and a February 28, 2007 nonmerit decision denying reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that he sustained an emotional
condition in the performance of duty; and (2) whether the Office properly refused to reopen
appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 15, 2006 appellant, a 54-year-old recreation aid, filed an occupational disease
claim alleging that on August 6, 2005 he first realized his stress was employment related. He

attributed his condition to intimidation and physical threats by his supervisor and remarks by
coworkers.
On July 27, 2007 the Office informed appellant that the evidence was insufficient to
support his claim. Appellant was advised as to the type of medical and factual information
required to support his claim.
Appellant submitted an August 6, 2005 grievance claim for an incident occurring on
August 5, 2005. The August 6, 2005 grievance alleged that on August 5, 2005 Erine Banks,
appellant’s supervisor, threatened him. He noted that he was a diabetic and that he felt his sugar
level dropping when he returned from picking up chicken dinners for the employee appreciation.
At this point, and prior to returning to the employing establishment, appellant stated that he
stopped to eat a portion of a chicken dinner to bring up his sugar level. He stated that he
informed a coworker about his blood sugar level when Mr. Banks began to question him about
the delivery of the dinners. Appellant informed Mr. Banks of his low blood sugar and asked if
someone else could deliver the remaining chicken dinners as he needed to rest. Mr. Banks
refused appellant’s request and directed him to deliver the remaining meals. At this point,
Mr. Banks allegedly threatened appellant by stating that if appellant had something to say, they
could take it outside and appellant would lose. Robert Mayfield and Bob Klein certified that
they witnessed the incident with Mr. Banks and appellant on August 5, 2005 as described by
appellant.
Appellant alleged that on March 30, 2006 Mr. Banks informed him that he was issuing
two counseling letters for two incidents reported by Mary Castillion, a coworker. The first
incident involved money Ms. Castillion received while covering for appellant during his lunch
break. Mr. Banks informed appellant that the cash register receipt did not include a $2.00 guest
fee Ms. Castillion received. Appellant noted that Ms. Castillion informed him of the two cash
sales she received while covering for him. However, appellant argued that it was
Ms. Castillion’s responsibility to log in the cash sales and that she should have been counseled.
The second incident occurred when Ms. Castillion reported that she arrived at work on
March 27, 2006 and noted appellant talking to another individual in the parking lot. She related
that there were people who appeared to be in need of assistance at the front of the fitness center.
Appellant contended that Ms. Castillion could have called to him and told him that there were
customers requiring his assistance instead of telling Mr. Banks. He noted that he was on his
15-minute break during the period that Ms. Castillion stated that he was outside.
On June 5, 2006 Dr. Janice S. Glenn, a Board-certified family practitioner, indicated that
she had treated appellant since 1993 and that since 1999 he had been insulin dependent. She
related that appellant is “prone to episodes of dangerously low blood sugar” and that he needed
to be able to eat when he feels his blood sugar level has dropped. Dr. Glenn noted that appellant
developed restless leg syndrome and sleep apnea when his work hours changed to 5:00 a.m. to
1:30 p.m. She opined that this change in appellant’s working hours “caused severe problems
with his diabetes control” and contributed to his stress level, which was already high due to an
ongoing pattern of harassment over the years as reported by appellant.
The employing establishment submitted statements by appellant’s first and second line
supervisor responding to his allegations. In an August 14, 2006 statement, Pam Menesses,

2

community activities manager, stated that she was Mr. Banks’ immediate supervisor. She was
unaware of any incident or situation in which appellant had been the victim of any job-related
stress. Ms. Menesses stated that she contacted the union president, Malcolm Skeins, who
informed her that appellant may have filed a grievance but he did not remember. She related that
appellant’s hours were changed after reviewing medical evidence that he submitted in support of
his compensation claim.
On August 14, 2006 Mr. Banks responded to appellant’s allegations. He denied that he
threatened appellant on August 5, 2005 and that he never received a copy of the report or
grievance filed by appellant. Mr. Bank also denied appellant’s allegations that coworkers were
spying on him. He stated that coworkers expressed their concerns as to why appellant had a
negative attitude about the job and was not acting as a team player. With respect to appellant’s
allegation of using “many hours of sick and annual leave to seek medical attention,” Mr. Banks
noted that appellant was assigned the early shift and could have easily scheduled medical
appointments after his shift ended. Mr. Banks stated that he was attending a meeting and that
upon returning he learned that appellant was not feeling well. He stated that he then drove
appellant home in a government vehicle.
In response to the questions from the Office, appellant detailed various incidents he
believed contributed to his stress. Appellant repeated the August 5, 2005 incident described in
his grievance and noted Mr. Mayfield and Mr. Klein as witnesses. On February 8, 2006
D. Scott, a coworker, told appellant that they were watching him. After hearing this, appellant
noticed coworkers looking at him, then turn away when they saw him looking back. He reported
seeing a note pad on Ms. Castillion’s desk which contained “a listing of dates and times [he]
went to lunch and returned, when [he] went on breaks and returned and other movements.” On
May 4, 2005 appellant described an incident involving Ms. Castillion looking down at him while
he was sweeping the gym weight area. He stated that he became paranoid as a result of
employees observing me. Appellant related that on March 2, 2006 at about 10:30 a.m. he
developed a migraine headache and he then called Mr. Banks to request leave. At 11:00 a.m.,
Mr. Banks arrived and allegedly told the chief steward, who had mentioned that appellant looked
unwell, that he was in charge. Appellant stated that he went out to his car and fell asleep. At
12:15 p.m. Mr. Banks found him and informed appellant that he would be driven home. The
March 30, 2006 counseling session with Mr. Banks involved the two incidents reported by
Ms. Castillion. On July 27, 2006 appellant stated that he was rated “A” on his performance
evaluation by Mr. Banks, who then presented appellant with two more counseling documents
immediately following his performance appraisal and ignored his right to have a union
representative present. One of the incidents for which appellant was counseled involved sleeping
at the front counter. He noted that he was being treated for sleep apnea and had presented
medical documentation showing that he developed this condition due to stress at his workplace.
Appellant alleged that he was subjected to emotional duress and physical threats. He alleged that
he was unable to perform the duties of the position to which he was assigned as he had lifting
restrictions limited to 15 pounds. Appellant noted that the position required he be able to
perform cardiopulmonary resuscitation (CPR), which he was not qualified to perform.
In a September 1, 2006 counseling documentation form, Mr. Banks counseled appellant
for calling one hour past the start of his work shift to abuse that he would not be at work.

3

By decision dated November 30, 2006, the Office denied appellant’s emotional condition
claim.
In a letter dated January 30, 2007, appellant requested reconsideration and stated that he
was enclosing statements dated December 21, 2006 by two coworkers and an appeal request
form in support of his request. No attachments were submitted with appellant’s request.
On February 28, 2007 the Office denied appellant’s request for reconsideration.1 The
Office found that while appellant’s letter referenced attachments to his letter, a review of the
record disclosed no attachments were submitted with his letter.
LEGAL PRECEDENT -- ISSUE 1
To establish his claim that he sustained an emotional condition in the performance of
duty, a claimant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.2
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,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.5 When an employee experiences
emotional stress in carrying out his 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 an emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of the work.6 On the other
hand, the disability is not covered where it results from such factors as an employee’s fear of a

1

The Board notes that appellant has submitted new evidence with his appeal to the Board. However, the Board
may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); Donald R. Gervasi, 57 ECAB ___ (Docket
No. 05-1622, issued December 21, 2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
2

Leslie C. Moore, 52 ECAB 132 (2000).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

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

6

Lillian Cutler, supra note 3.

4

reduction-in-force or his frustration from not being permitted to work in a particular environment
or to hold a particular position.7
In emotional condition claims, when working conditions are alleged as factors in causing
a condition or disability, the Office, as part of its adjudicatory function, must make findings of
fact regarding which working conditions are deemed compensable factors of employment and
are to be considered by a physician when providing an opinion on causal relationship and which
working conditions are not deemed factors of employment and may not be considered. If a
claimant does implicate a factor of employment, the Office should then determine whether the
evidence of record substantiates that factor. When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, the Office
must base its decision on an analysis of the medical evidence.8
As a general rule, an employee’s emotional reaction to administrative or personnel
actions taken by the employing establishment is not covered because such matters pertain to
procedures and requirements of the employer and are not directly related to the work required of
the employee.9 An administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.10
An employee’s frustration from not being permitted to work in a particular environment or to
hold a particular position is not compensable.11 Similarly, an employee’s dissatisfaction with
perceived poor management is not compensable under the Act.12
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his allegations with probative and reliable evidence.13
ANALYSIS -- ISSUE 1
Appellant alleged that he was subjected daily to emotional duress and physical threats.
Specifically, he alleged that Mr. Banks threatened and harassed him on various dates. Appellant

7

Kim Nguyen, 53 ECAB 127 (2001).

8

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

9

Felix Flecha, 52 ECAB 268 (2001).

10

See supra note 7.

11

Barbara J. Latham, 53 ECAB 316 (2002).

12

Id.

13

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

5

also alleged that Mr. Banks improperly counseled him and that he was being observed by
coworkers who kept track of his comings and goings.
Appellant contended that he was unable to perform the duties of his position as he was
not qualified in CPR and was unable to lift more than 15 pounds. The Board has held that being
required to work beyond one’s physical limitations could constitute a compensable employment
factor if such activity is substantiated by the record.14 However, there is insufficient evidence to
establish that the employing establishment required appellant to perform work that exceeded his
medical restrictions or that he was required to perform CPR. Appellant did not demonstrate that
his supervisor required him to work beyond his restrictions by requiring him to lift more than
15 pounds. The evidence establishes that he was required to help customers at the fitness center,
get chicken dinners for employee appreciation and sweep the floor. Appellant did not provide
evidence showing that he was required to work outside his restrictions. Therefore, this allegation
is not found to be a compensable employment factor.
Appellant has not established that the employing establishment acted unreasonably with
regard to administrative matters. He alleged that he was improperly monitored by coworkers and
issued unreasonable counseling actions. Appellant submitted no evidence showing that these
administrative functions were abusive or unreasonable.
He alleged that Mr. Banks
inappropriately counseled him following his performance appraisal in 2004. However, as noted
the Board has held that discussions of job performance and counseling do not fall under the
coverage of the Act absent a showing of error or abuse. There is no evidence that appellant’s
supervisor abused his discretion or was unreasonable in either monitoring appellant on
October 2, 2004 or discussing his performance of October 2, 2004 with appellant. He has failed
to establish compensable work factors with respect to these allegations.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of his regular duties, these could constitute a compensable employment
factor.15 However, for harassment and discrimination to give rise to a compensable disability
under the Act, there must be evidence that harassment or discrimination did in fact occur. To
establish entitlement to benefits, a claimant must establish a factual basis for the claim by
supporting allegations with probative and reliable evidence.16 Mere perceptions of harassment or
discrimination are not compensable under the Act.17
Appellant alleged that coworkers were watching him. He reported that, on February 8,
2006, D. Scott, a coworker, told him that they were watching him. On May 4, 2005 appellant
observed Ms. Castillion looking down at him while he was sweeping the gym weight area. He
14

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

15

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

16

See V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007); C.S., 58 ECAB ___ (Docket No. 061583, issued November 6, 2006); Barbara J. Nicholson, 45 ECAB 803 (1994).
17

L.S., 58 ECAB ___ (Docket No. 06-1808, issued December 29, 2006); Donna J. DiBernardo, 47 ECAB
700 (1996).

6

alleged that he became paranoid as a result of unidentified individuals observing him.
Appellant’s allegations alone are insufficient to establish a factual basis for his claim.18 He has
submitted no evidence, such as witness statements, to corroborate his claims. General
allegations that he was being watched by coworkers are insufficient to establish that harassment
did, in fact, occur. Thus, the Board finds that appellant has not established a compensable
employment factor under the Act with respect to these above-described allegations.
Appellant also alleged that he was threatened and harassed by Mr. Banks. On August 5,
2004 Mr. Banks allegedly threatened him after picking up chicken dinners for an employee
appreciation. Appellant informed Mr. Banks of his low blood sugar level and requested that
someone else complete the delivery of the chicken dinners. Mr. Banks refused the request and
ordered appellant to complete the delivery of the dinners. It was at this point that Mr. Banks
allegedly threatened appellant. Appellant also alleged harassment on March 2, 2006. He alleged
that around 10:30 a.m. on that date he developed a migraine headache and called Mr. Banks to
request leave. As appellant had no response from Mr. Banks, he stated that he went out to his car
and fell asleep. Mr. Banks found him at 12:15 p.m. and informed him that he would be taken
home in a government vehicle.
As to the August 5, 2005 incident, the employing establishment submitted statements
dated August 14, 2006 by Ms. Menesses and Mr. Banks, denying appellant’s allegation that
Mr. Banks threatened Ms. Menesses related that she was unaware “of any incident or situation
in which [appellant] has been the victim of any job[-]related stress.” Mr. Banks denied that he
threatened appellant on August 5, 2005. As to the March 2, 2006 incident, he stated that he was
attending a meeting and he learned that appellant was not feeling well. Mr. Banks stated that he
drove appellant home in a government vehicle. The evidence of record does not establish
appellant’s allegations as factual. The employment incidents alleged as the cause of his
emotional condition were not supported by probative and reliable evidence, such as witness
statements. Appellant submitted evidence of an August 5, 2005 grievance detailing the
August 5, 2005 incident with Mr. Banks. On the second page of the form there were witness
signatures of Mr. Mayfield and Mr. Klein. Above the signatures, was a statement that both
Mr. Mayfield and Mr. Klein witnessed the incident with Mr. Banks and appellant on August 5,
2005 as described by appellant. However, they provided no independent statement explaining
what happened. To establish that an incident occurred as alleged, the evidence must be
sufficiently specific as to person, time and place.19 The evidence from the claim form is not
sufficient to establish that appellant was harassed or verbally abused by his supervisor. With
respect to the other March 2, 2006 incident, he submitted no witness statements. There is
insufficient evidence to establish his allegations as factual and they are not compensable
employment factors.
Appellant alleged that on March 30, 2006, his supervisor improperly issued two
counseling letters involving the incidents described by Ms. Castillion. The first incident
involved Ms. Castillion covering for appellant during his lunch hour. Mr. Banks admonished
appellant for failing to include a cash register receipt for $2.00 that Ms. Castillion received while
18

Charles E. McAndrews, 55 ECAB 711 (2004).

19

See Mildred D. Thomas, 42 ECAB 888 (1991); David W. Shirey, 42 ECAB 783 (1991).

7

covering for him. On March 27, 2006 Ms. Castillion arrived and noticed appellant talking with
another individual in the parking lot. She reported that she provided assistance to people waiting
at the front of the fitness center. Appellant stated that Ms. Castillion should have told him that
there were customers requiring his assistance instead of telling Mr. Banks. On July 26, 2006 he
alleged that Mr. Banks improperly issued two more counseling letters following his performance
evaluation. Appellant contended that Mr. Banks should have told him of the problem on July 11,
2006, when the incidents occurred, instead of waiting until his performance evaluation. One
counseling letter involved his sleeping at the front counter and he informed management that he
was being treated for sleep apnea. These allegations relate to administrative or personnel
matters, not to the employee’s regular or specially-assigned work duties and does not fall within
the coverage of the Act.20 Although the handling of disciplinary actions and evaluations are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.21 An administrative or personnel matter will not be considered to be an
employment factor unless the evidence discloses error or abuse on the part of the employing
establishment or that it acted unreasonably. The evidence in this case is insufficient to establish
that Mr. Banks erred or acted abusively in these matters. Although appellant alleged stress with
respect to Mr. Banks issuing the counseling letters, he has not provided evidence to substantiate
that any actions taken by Mr. Banks were in error, abusive or unreasonable in nature. He has not
established a compensable factor pertaining to the issuance of disciplinary actions.
Appellant failed to establish that his emotional condition was causally related to a
compensable factor of employment. Therefore, the Office properly denied his claim.22
LEGAL PRECEDENT -- ISSUE 2
The Act23 provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.24 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.25
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
20

Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006).

21

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

22

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006); see
Barbara J. Latham supra note 11; Garry M. Carlo, 47 ECAB 299 (1996).
23

5 U.S.C. §§ 8101 et seq.

24

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB ___ (Docket No. 06-121, issued June 6, 2006).

25

20 C.F.R. § 10.605.

8

considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.26
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.27 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.28
ANALYSIS -- ISSUE 2
Appellant’s January 30, 2006 request for reconsideration was not accompanied by any
new evidence and it did not argue that the Office erroneously applied or interpreted a specific
point of law. The Office noted that while appellant referenced six enclosures to his letter
requesting reconsideration, a review of the record failed to find the referenced enclosures.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his January 30, 2007 request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty. The Board further finds that the
Office properly denied appellant’s request for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).

26

Id. at § 10.606. See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

27

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

28

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB ___ (Docket No. 05-677, issued July 13, 2005).

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 28, 2007 and November 30, 2006 are affirmed.
Issued: September 11, 2007
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

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

Docket No. 08-1112
Issued: September 22, 2008

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 March 1, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated December 5, 2007. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant was not entitled to
augmented compensation based on claiming her niece as a dependent under section 8110 of the
Federal Employees’ Compensation Act.
FACTUAL HISTORY
This is the second appeal before the Board. On March 28, 2002 appellant, a 44-year-old
clerk, filed a claim for a bilateral carpal tunnel condition causally related to employment factors.
The Office accepted the claim for bilateral carpal tunnel syndrome. On July 23, 2004 appellant
filed a Form CA-7 claim for a schedule award based on a partial loss of use of her left and right
upper extremities. By decision dated June 3, 2005, the Office reduced her compensation to zero,

finding that her actual wages represented her wage-earning capacity. Appellant thereafter
requested a hearing before an Office hearing representative on the issue of her wage-earning
capacity. At the hearing, she inquired about the compensation rate she would be paid in the
event the Office awarded her compensation for a schedule award.1 Appellant asserted that she
had a dependent, her niece, whom she was taking care of following the death of her sister. The
hearing examiner advised that appellant would be paid at the 75 percent rate if she had a
dependent and at the 66 2/3 percent rate without a dependent. On May 23, 2006 the Office
granted appellant schedule awards for a 12 percent impairment of her right upper extremity and a
12 percent impairment of her left upper extremity. The decision indicated that appellant was
being paid weekly compensation at the 66 2/3 percent rate.
In a letter received by the Office on September 6, 2006, appellant informed the Office
that she intended to submit evidence that she had a dependent.
By decision dated October 31, 2006, the Office denied modification of the May 23, 2006
schedule award decision. Appellant appealed this decision to the Board. She noted that she had
attached a copy of a September 9, 2007 court order from the Circuit Court of Cook County,
Illinois, Department of Juvenile Justice and Child Protection, awarding her legal guardianship of
her niece.
In an August 7, 2007 decision,2 the Board set aside the Office’s May 23, 2006 decision.
The Board found that the Office erred in relying on the Office medical adviser’s opinion because
he failed to specify the methods by which he calculated a 12 percent bilateral upper extremity
rating. The Board remanded the case to the district Office for further development of the
medical evidence. The complete facts of this case are set forth in the Board’s January 24, 2007
decision and are herein incorporated by reference.
By telephone call and letter dated October 30, 2007, appellant informed the Office that
she was not contesting the percentage of impairment made in her schedule award.3 Instead, she
stated that she was appealing the 66 2/3 weekly compensation rate she claimed her niece as a
dependent and entitlement to compensation at the 75 percent compensation rate. Appellant again
attached the copy of the court order awarding her legal guardianship of her niece, along with her
niece’s birth certificate.
By letter dated November 6, 2007, the Office informed appellant that she was not eligible
for compensation at the augmented rate of 75 percent unless she adopted her niece. It advised
her that she needed to submit proof of adoption, such as a copy of the adoption papers, if she had
legally and formally adopted her niece.
1

By decision dated April 10, 2006, the Office found that appellant’s actual earnings in her reemployment as a
modified custodian with the employing establishment fairly and reasonably represented her wage-earning capacity.
This decision is not at issue before the Board.
2

Docket No. 07-707 (issued August 7, 2007).

3

Appellant also requested cancellation of the second opinion medical examination the Office scheduled for her
pursuant to the Board’s August 7, 2007 decision. The Office granted appellant’s request.

2

By decision dated December 5, 2007, the Office reinstated the May 23, 2006 schedule
award decision which granted appellant an award for 12 percent bilateral upper extremity
impairment. It found that appellant was not entitled to augmented compensation at the 75
percent rate based on claiming her niece as a dependent.4 The Office found that legal
guardianship of her niece did not qualify her as a dependent for the purpose of augmented
compensation under the Act.
LEGAL PRECEDENT
Under 5 U.S.C. § 8110, a claimant is entitled to augmented compensation at the rate of 75
percent of her monthly pay if she has a dependent. Under this section a dependent includes an
“unmarried child, while living with the employee or receiving regular contributions from the
employee toward his support,” and who is either under 18 years of age or incapable of selfsupport because of physical or mental disability.5
Sections 8101(9) and 8110 state that only individuals specifically defined as a child under
section 8110 would entitle an employee to augmented compensation for such a dependent. The
term child in section 8101(9) of the Act provides for three specific relationships in addition to the
biological relation between a parent and his or her natural child: stepchildren, adopted children
and posthumous children. A niece or legal ward is not included among the definitions of a child
pursuant to the Act.6
ANALYSIS
Appellant submitted a copy of a September 9, 2007 order from the Circuit Court of Cook
County, Illinois, Department of Juvenile Justice and Child Protection, awarding her legal
guardianship of her niece. The issue is whether appellant’s niece is a “child” as defined under
section 8110. The Act provides that a “‘child’ means one who ... is under 18 years of age or over
that age and incapable of self-support, and includes stepchildren, adopted children and
posthumous children, but does not include married children.”7 In Aretha Hudson,8 the Board
held that a nephew is not a “child” under section 8101(9), and the guardian of a nephew is not
entitled to augmented compensation under the Act. As noted in Hudson, nephews are not among
the categories of persons included in the term “child” for purposes of the Act. The definition of
“child” covers three specific relationships, in addition to the biological one between a person and
4

The birth certificate for appellant’s niece indicated that she was born on February 4, 1985 and therefore was a
minor during the period of appellant’s schedule award.
5

5 U.S.C. § 8110(3).

6

See Louis L. Jackson, Sr., 39 ECAB 423 (1988), citing Aretha Hudson , 28 ECAB 169, 170 (1977) (where the
Board held that appellant’s legal guardianship and support of her two minor nephews did not qualify the children as
dependents pursuant to the Act, because appellant had not adopted the children). Both of these cases note the
principle of statutory construction known as expressio unis est exclusio alterius, whereby the expression of specific
persons or things in a statute implies an intent to exclude all others.
7

5 U.S.C. § 8101(9).

8

Aretha Hudson, 28 ECAB 169 (1977).

3

her natural child. A niece is not included among the definitions of a child pursuant to the Act.
There are other close relationships, such as that between a legal guardian and a ward, which are
not included.
Accordingly, the Board finds that appellant’s niece is not a “child” under section
8101(9) and not a dependent for the purposes of augmented compensation under section 8110 of
the Act. The Office properly found that appellant is not entitled to augmented compensation at
the 75 percent rate based on the legal guardianship of her niece. The Board will affirm the
December 5, 2007 Office decision.
CONCLUSION
The Office properly determined that appellant was not entitled to augmented
compensation based on claiming her niece as a dependent under section 8110 of the Act.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 22, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, WESTVILLE POST
OFFICE, Westville, NJ, Employer
__________________________________________

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

Docket No. 09-2137
Issued: June 24, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2009 appellant, through his attorney, filed a timely appeal from
September 10, 2008 and May 14, 2009 merit decisions of the Office of Workers’ Compensation
Programs terminating his medical and wage-loss benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s medical and wage-loss
benefits effective September 10, 2008 on the grounds that he no longer continued to experience
any residuals or disability causally related to his employment injury.
On appeal, appellant’s representative contends that the Office’s second opinion
physician, Dr. Zohar Stark, a Board-certified orthopedic surgeon, did not provide a rationalized
medical opinion explaining how appellant had reached maximum medical improvement and
could return to work despite his findings that appellant was receiving physical therapy three
times per week and that he had an equinus gait that produced pain around the great toe. In the

alternative, appellant’s representative argued that a conflict of medical opinion existed between
Dr. Stark and appellant’s treating physician, Dr. Michael H. Shinder, a podiatrist.
FACTUAL HISTORY
The Office accepted that on October 15, 2007 appellant, then a 28-year-old carrier,
sustained a closed injury to the right foot phalanges after he fell down stairs while delivering
mail. Appellant sought medical attention on October 17, 2007 and stopped working that day.
On October 31, 2007 he accepted a limited-duty position and worked until February 28, 2008
when he underwent an authorized excision of bone fragments from the proximal phalanx of the
hallux. The Office accepted that appellant experienced a February 28, 2008 recurrence of
disability and began paying wage-loss compensation.1 It placed appellant on the periodic rolls
on May 11, 2008.
On April 11, 2008 appellant was terminated from his position due to allegations of mail
theft. He subsequently filed a grievance, which was determined through arbitration to be without
merit and resolved.
On April 29, 2008 appellant’s treating physician, Dr. Michael H. Shinder, a podiatrist,
released appellant to full-time light duty. In a May 14, 2008 report, Dr. Shinder stated that
appellant was still in the postoperative period from the excision of a fracture fragment in his first
toe. He reported that appellant had benefited from weekly physical therapy but had not yet
achieved all his functional goals. Dr. Shinder recommended appellant continue physical therapy
for an additional four weeks.
The Office determined that a second opinion evaluation was required and referred
appellant, together with a statement of accepted facts and a copy of his record, to Dr. Zohar
Stark, a Board-certified orthopedic surgeon. In a May 29, 2008 medical report, Dr. Stark
reviewed appellant’s occupational and medical history. On physical examination, appellant was
able to walk with a reciprocating heel to toe gait. However, walking in equinus gait produced
pain in the area of the great toe. Examination further revealed a healed operative scar over the
dorsomedial aspect of the first metacarpophalangeal (MP) joint with some localized tenderness
on palpation. Motion of the MP and interphalangeal (IP) joints of the first toe were normal.
Dr. Stark noted that a March 27, 2008 x-ray showed a completely healed fracture. He diagnosed
healed fracture of the right first proximal phalanx, caused by the October 15, 2007 work-related
incident. Dr. Stark opined that appellant was capable of performing his date-of-injury duty as a
letter carrier with no restrictions. He further opined that appellant had recovered from his work
injury and that no further medical treatment, physical therapy, diagnostic studies or surgical
treatments were required.
In a June 24, 2008 medical note, Dr. Shinder reported that appellant was improving and
able to walk for longer periods. Physical examination revealed tenderness at the operative site
and pain with range of movement. Dr. Shinder stated that appellant could not walk without pain
and recommended continued physical therapy.
1

Appellant submitted several claims for wage-loss compensation for the period February 28 through
May 8, 2008.

2

On August 7, 2008 the Office proposed to terminate appellant’s medical and wage-loss
benefits on the grounds that Dr. Stark’s medical opinion, that appellant no longer had any
ongoing disability or medical condition related to the employment injury, represented the weight
of the medical evidence.
In an August 14, 2008 letter, appellant, through his attorney, objected to the proposed
termination of benefits. He argued that Dr. Stark’s medical report confirmed that appellant
continued to experience pain from his work injury.
By decision dated September 10, 2008, the Office terminated appellant’s medical and
wage-loss benefits effective September 10, 2008. It found that Dr. Stark’s report established that
appellant did not continue to experience residuals or disability from his employment injury and
that appellant did not submit sufficient evidence to contradict this opinion.
On September 16, 2008 appellant, through his representative, filed a request for an oral
hearing before an Office hearing representative.
The oral hearing took place on
January 12, 2009.
By decision dated May 14, 2009, the Office hearing representative affirmed the
September 10, 2008 termination of benefits on the grounds that the weight of the medical
evidence rested with Dr. Stark, who determined that appellant did not continue to experience any
residuals from his employment injury and could return to his date-of-injury position.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.3 The Office’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.4
ANALYSIS
The Office accepted that appellant sustained a closed injury to the right foot phalanges on
October 15, 2007 after falling down stairs at work. Appellant worked light duty from
October 31, 2007 until February 28, 2008, when he experienced a recurrence of disability after
undergoing surgery to remove bone fragments due to his injury. The Office began paying wageloss compensation and on May 11, 2008 it placed appellant on the periodic rolls. The issue is
whether the Office properly terminated appellant’s medical and wage-loss benefits effective
September 10, 2008 on the grounds that his employment-related injury had resolved.

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
3

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

4

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

3

In reports dated April 29 through June 24, 2008, appellant’s treating physician,
Dr. Shinder, consistently found that appellant was partially disabled and that he could not walk
without pain. He continued to prescribe physical therapy and reported that appellant’s condition
had not completely resolved.
The Office subsequently referred appellant to Dr. Stark for a second opinion evaluation.
In a May 29, 2008 report, Dr. Stark opined that appellant had completely recovered from his
employment injury and was capable of working his date-of-injury position. However, his
findings on physical examination included pain in the great toe area while walking in equinus
gait and tenderness with palpation over the operative scar. Dr. Stark did not explain the
inconsistency between his findings of pain and tenderness and his opinion that appellant’s
employment-related condition had resolved.5 He did not opine that these were solely subjective
symptoms unsupported by any objective findings. Further, Dr. Stark did not describe appellant’s
employment duties or explain why he believed that appellant could return to a full-duty mail
carrier position despite his pain while walking.6 As he did not provide a rationalized medical
opinion supporting his findings that appellant was no longer disabled and that his employmentrelated condition had resolved, his opinion is of diminished probative value.7
The record does not contain a fully rationalized medical opinion that appellant was able
to return to his date-of-injury position or that he no longer experienced residuals from his
employment-related injury. Therefore, the Board finds that the Office improperly terminated
appellant’s benefits.8
CONCLUSION
The Board finds that the Office improperly terminated appellant’s medical and wage-loss
benefits effective September 10, 2008 on the grounds that he no longer continued to experience
residuals or disability causally related to his employment injury.

5

See Robert C. Pearson, 32 ECAB 403 (1980).

6

See Leslie C. Moore, 52 ECAB 132 (2000); id.

7

See Theodore Parker, 50 ECAB 542 (1999).

8

See Douglas M. McQuaid, 52 ECAB 382 (2001).
August 1, 2002).

4

See also Tressia Lewis, Docket No. 02-56 (issued

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2009 and September 10, 2008
decisions of the Office of Workers’ Compensation Programs are reversed.
Issued: June 24, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5