United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sunnyvale, CA, Employer
__________________________________________

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Appearances:
James Wright, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1356
Issued: February 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 20, 2013 appellant, through her representative, filed a timely appeal from the
December 31, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On February 1, 2012 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 20, 2012 at 5:00 p.m. she experienced stress due to

1

5 U.S.C. §§ 8101-8193.

sexual harassment by a coworker, Juanito Rivera.2 She stopped work on January 31, 2012. The
employing establishment controverted the claim on the grounds that the reported incident
occurred off the employing establishment’s premises and after appellant’s work shift had ended.
It noted appellant’s work tour as 7:00 a.m. to 4:00 p.m., Monday through Thursday, and
Saturday.
In a February 6, 2012 letter, the employing establishment asserted that the claimed
incident occurred off duty and after hours. Postmaster John Silberberg stated that on January 20,
2012 appellant was off duty. He submitted an attendance record printout showing that she was
not scheduled to work on January 20, 2012. Postmaster Silberberg stated that appellant told him
that the alleged incident with Mr. Rivera occurred at her home.
In a February 13, 2012 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of her claim.
In a February 21, 2012 statement, appellant alleged that Mr. Rivera sexually harassed her
by personal contact as well as text messages, and that most of these incidents occurred when “I
was in the performance of my duty as a letter carrier either on the employer’s premises or out on
my route delivering mail.” She submitted printouts of text messages that she characterized as
sexual and harassing in nature.3 Appellant was the named recipient of the messages and the
sender was identified by a telephone number. The messages included “I don’t like somebody
changing your name to Claudia” (transmitted October 26, 2011, 5:30 p.m.); “stop by Hillsdale
Starbucks if u have time” (November 11, 2011 4:32 p.m.); “I will always love you”
(November 12, 2011, 12:36 p.m.); “sorry for bothering you... I have abused too much goodbye”
(November 12, 2011, 2:17 p.m.); “I will stay away from you” (November 12, 2011, 3:41 p.m.);
and “happy Thanksgiving” (November 24, 2011, 2:20 p.m.).
Appellant alleged multiple sexual harassment incidents by Mr. Rivera occurring between
June 2010 and January 20, 2012. She alleged that Mr. Rivera asked personal questions about her
health and vacation plans; used her delivery truck when she was on leave, and cleaned the truck
inside and outside. Mr. Rivera wrote her name on his mail hamper with a black marker and told
her that he knew her personal car license number. In January 2011, appellant spoke to coworkers
Wayne Purdy and Craig Bragg about Mr. Rivera. After this, Mr. Rivera posted a sign on his
mail case referring to appellant as an ex-girlfriend, a devil and a traitor. Appellant alleged that in
February 2011 she was with her daughter at a Starbucks coffee shop on her way to work when
she saw Mr. Rivera parked nearby. In May 2011, Mr. Rivera followed her after work when she
picked up her daughter or went shopping. In June 2011, he followed appellant, mostly on
Saturdays, driving different rental cars. Appellant claimed that in July 2011 Mr. Rivera showed
up on her mail route, offering a juice drink and, on July 31, 2011, he passed her on the road and
honked his horn. In October 2011, she received a new mail route and Mr. Rivera showed up at
the route. In November 2011, appellant returned to her old mail route and Mr. Rivera appeared

2

The claim was treated as a claim for an occupational disease rather than a traumatic injury because appellant
alleged incidents occurring over more than one workday or shift.
3

The record also contains photographs depicting the text messages.

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on the route. She alleged that Mr. Rivera often came to an apartment complex where she
delivered mail to the extent that the complex manager noticed that she was upset.
Appellant alleged that in November 2011 Mr. Rivera texted her that he was her neighbor.
In November or December 2011, Mr. Rivera moved into a house in appellant’s neighborhood
and parked his car next to her house. In December 2011, appellant and Ivan Christomo, a
coworker, spoke with Mr. Rivera at the employing establishment. She made it clear to
Mr. Rivera that she did not want him in her neighborhood and that he should stay away from her.
Appellant alleged that Mr. Rivera screamed at her and Mr. Christomo and that he did not stay
away as she had requested. On December 13, 2011 she and Mr. Christomo reported to
Postmaster Silberberg their recent conversation with Mr. Rivera. On December 14, 2011
Postmaster Silberberg told Mr. Rivera to stay away from appellant and to park his postal truck
away from where she parked her truck. He told appellant that he would refer the matter to the
employing establishment inspectors. Appellant alleged that on December 15, 2011 Mr. Rivera
was standing nearby as she was preparing to leave the employing establishment. She reported
the matter to Mr. Silberberg, who interviewed Chit Wo To, a coworker. Mr. Silberberg also
interviewed Mr. Purdy and Mr. Bragg. On December 22, 2011 an envelope containing money
and the notation “friends forever” was left at a mailbox on her route. Appellant contended that
Mr. Rivera attempted to give her Christmas and birthday gifts.4 She claimed that in
January 2012 the postal inspectors from the Office of the Inspector General (OIG) interviewed
Mr. Rivera and other employees. Appellant alleged that Mr. Rivera continued to park his postal
truck next to her truck despite the postmaster’s instructions not to park there. On January 6,
2012 at 7:00 p.m. Mr. Rivera was at her house when she arrived home and that he screamed at
her. Appellant stated that she spoke with OIG inspectors about Mr. Rivera in January 2012, but
he continued to bother her. She alleged that on January 19, 2012 at about 6:00 p.m. Mr. Rivera
crossed in front of her as she was exiting the employing establishment.
A January 6, 2012 report of the South San Francisco Police contains an allegation by
appellant that Mr. Rivera yelled at her and was stalking her, but the document does not contain
any official findings. The record also contains a March 20, 2012 stipulation and order,
voluntarily entered into by appellant and Mr. Rivera, which dictated that the two would not have
any communications or meetings with each other. The document indicated that neither party
acknowledged past liability or fault.
In a February 22, 2012 statement, Mr. Bragg stated that he spoke to Mr. Rivera about
appellant filing a complaint against him for sexual harassment and noted that he saw Mr. Rivera
park his vehicle behind that of appellant. He noticed Mr. Rivera going back and forth at the
parking lot at 6:00 p.m. before appellant returned from street delivery. Mr. Bragg opined that
Mr. Rivera seemed obsessed with appellant. In a February 23, 2012 statement, Ms. To stated
that she saw Mr. Rivera wash appellant’s delivery truck a few times when she was on vacation.
She stated that Mr. Rivera asked her about appellant’s vacation plans and that appellant told her
Mr. Rivera had asked her questions and followed her on the freeway.

4

The record contains a photograph of an envelope bearing the words “forever friend” with $30.00 in bills next to
it. Another photograph depicts a birthday card addressed to “Maya” with $50.00 in bills next to it.

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In a February 22, 2012 statement, Mr. Christomo stated that on December 6, 2011 he told
Mr. Rivera to stay away from appellant. He spoke with Postmaster Silberberg on December 16,
2011 about appellant’s problems with Mr. Rivera, including the text messages. Postmaster
Silberberg later informed Mr. Christomo and appellant that he had referred the matter to the
OIG. Mr. Christomo stated that on December 22, 2011 appellant showed him an envelope with
money she found in a mailbox on her route. He noted that the envelope was found inside a
locked mailbox and that only someone with access to the box key could have left the envelope
there.
A February 27, 2012 OIG investigative memorandum addressed Mr. Rivera’s conduct.
Inspector Brian J. Codianne stated that he interviewed Mr. Rivera, Francisco Zialcitta, a
coworker who carpooled with Mr. Rivera, and Wayne Yuen, manager of a Hertz rental car
agency in South San Francisco where Mr. Rivera was also employed. He noted that Mr. Rivera
stated that he lived in Stockton but also had a residence in San Francisco because he had a job
there. Mr. Rivera stated that he and appellant were friends. He indicated that his wife’s son
from a previous marriage rented an apartment in the vicinity of appellant’s home, where
Mr. Rivera resided from November 30 to December 14, 2011. Mr. Rivera stated that living near
appellant was a coincidence. He denied that he was in the vicinity of her home on January 6,
2012, noting that on such date he worked at the employing establishment and then picked up his
brother at the airport before returning to Stockton. Mr. Rivera denied ever threatening appellant.
The Hertz records showed that Mr. Rivera was performing work for Hertz out of town on
January 20, 2012. Mr. Zialcitta indicated that he carpooled with Mr. Rivera between Stockton
and San Francisco two to three days a week, but they did not carpool on days when Mr. Rivera
worked in San Francisco. Mr. Zialcitta kept a log of carpool trips which indicated that
Mr. Rivera carpooled with him beginning December 28, 2011. Mr. Rivera did not carpool on
January 6, 2012. Inspector Codianne also interviewed Walter Ernst, a Hertz employee, who
verified that on January 20, 2012 Mr. Rivera worked at Hertz. Mr. Ernst recalled the occurrence
of a large storm on that date and Inspector Codianne checked weather data for January 20, 2012
which confirmed Ernst’s recollection. OWCP also received reports by Dr. George D. Karalis, an
attending Board-certified psychiatrist, who diagnosed depression and anxiety.
In a July 13, 2012 decision, OWCP denied appellant’s emotional condition claim. It
found that she had not established any compensable work factors. OWCP noted that the witness
statements did not clearly establish the claimed harassment by Mr. Rivera.
Appellant requested a hearing before an OWCP hearing representative. At the
October 22, 2012 hearing, she was represented by counsel. Dr. Karalis and Mr. Christomo also
testified. Appellant testified that Mr. Rivera visited her on her postal route and sent her text
messages. She testified that most of the messages were sent and received during work hours.
Appellant believed that the text messages were sexual in nature and that she was a victim of
sexual harassment. On one occasion while she was delivering mail at an apartment complex,
Mr. Rivera attempted to hug her. Appellant pushed Mr. Rivera away and that the apartment
manager came out from her office and asked appellant if she was OK or needed help. She
testified that Mr. Rivera had a delivery route about 15 minutes from her own route and that he
visited her while she delivered mail. Appellant asked Mr. Christomo to tell Mr. Rivera to stop
visiting her on her route or asking her out socially. She and Mr. Christomo spoke with
Mr. Silberberg on December 13, 2011 and told him about Mr. Rivera’s conduct. Appellant

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denied any prior or current personal relationship with Mr. Rivera and noted that they were only
coworkers.
Mr. Christomo testified that he was a union steward at the employing establishment.
Appellant told him about the problems she had with Mr. Rivera, including text messages. He
testified that appellant showed him text messages received on her cell phone which were sent by
Mr. Rivera. Mr. Christomo and appellant spoke with Mr. Rivera on December 6, 2011 in the
employing establishment parking lot but he did not acknowledge appellant’s complaints.
Mr. Christomo brought the matter to the attention of Postmaster Silberberg and that the reaction
by management was to “play down” appellant’s complaints. He stated that Mr. Rivera was
issued a 14-day suspension, but Mr. Christomo was unsure whether the suspension was based on
conduct regarding appellant. Mr. Christomo testified that, at a meeting, Mr. Silberberg told
Mr. Rivera to stop sending messages to appellant. Dr. Karalis testified that appellant showed
him the text messages submitted to the record and stated that they appeared to be sexual in nature
or sexually oriented. He opined that such messages, the personal contact between Mr. Rivera
and appellant, and Mr. Rivera washing appellant’s postal truck were all upsetting to her and
caused major depression. Counsel stated that an unsigned witness statement of December 27,
2011 was by Mr. Purdy and had originally been submitted in connection with an Equal
Employment Opportunity (EEO) complaint filed by appellant. Counsel was advised to obtain a
signed copy of the statement.
The record was held open for 30 days to allow for the submission of additional evidence.
A copy of the transcript was provided to the employing establishment and 20 days allowed for
the submission of written comments.
On November 26, 2012 Postmaster Silberberg stated that appellant’s complaints about
Mr. Rivera were brought to his attention on December 20, 2011 and he immediately took action.
Mr. Rivera was disciplined for unauthorized route deviations and washing of vehicles, as well as
unwelcome visits to other carriers on their routes. Mr. Silberberg was not previously apprised of
contact between Mr. Rivera and appellant dating back to June 2010. He placed Mr. Rivera on
notice to stay away from appellant and warned him of the consequences if he failed to follow
instructions, including disciplinary action. Mr. Silberberg stated that there was no evidence that
Mr. Rivera failed to follow his instructions. Appellant’s testimony that Mr. Rivera tried to hug
her was never brought to him or through an EEO complaint. Mr. Silberberg acknowledged that
Mr. Rivera sent text messages to appellant, but opined that such messages were not sexually
suggestive and would not offend a reasonable person. Lester Anderson, a customer service
supervisor, stated that Mr. Rivera was suspended for 14 days for deviating from his route,
washing postal vehicles without authorization to do so, and for unwelcome visits to other
carriers’ routes, including appellant’s route. The discipline against Mr. Rivera was based in part
on appellant’s complaints.
The employing establishment submitted a copy of a March 29, 2012 disciplinary notice.
Mr. Rivera was suspended for 14 days on a charge of unacceptable conduct. He admitted
deviating from his route to assist other carriers to complete their duty assignments and also
washing their postal vehicles without prior approval. The employing establishment noted that
section 131.13 of the M-41 labor handbook stated that a letter carrier should not deviate from the
route for meals or other purposes unless so authorized by a manager.

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In an EEO affidavit dated June 29, 2012, Mr. Silberberg stated that Mr. Rivera admitted
he visited appellant on her delivery route, but his purpose was to assist her. He denied speaking
with appellant and Mr. Christomo on December 13, 2011 about Mr. Rivera and stated the
complaints about Mr. Rivera were brought to him by appellant initially on December 20, 2011.
In March 2012, appellant brought to his attention that she had requested a restraining order
against Mr. Rivera.
In an April 26, 2012 document, OIG Inspector Codianne memorialized an interview with
Lesha Williams, manager of Aster Park Apartments. Ms. Williams stated that in late 2011 she
saw two employing establishment vehicles at her complex and two letter carriers, one male and
one female. She thought nothing about seeing the two carriers and assumed they were delivering
mail to the complex. Ms. Williams did not see any altercation involving the carriers. She did
not speak with either one and stated that around Christmas 2011 the female carrier asked her if
she had given her any money in an envelope as a gift. Ms. Williams responded no, and the
carrier related that she was having problems with another carrier who she thought was following
her at work. She advised the inspector that she did not see any stalking or altercation between
the letter carriers at the apartment complex.
In a June 26, 2012 EEO affidavit, Mr. Rivera denied that he was at a Starbucks in
February 2011 when appellant was there. He denied he was at a Macy’s department store in
May 2011 when appellant was there, noting that at such time he was in a carpool with Annel
Chaimian. Mr. Rivera denied using different cars to follow appellant on Saturdays in June 2011.
He stated that every Saturday he worked between 7:30 a.m. and 4:00 p.m. and then travelled to
Stockton with his wife. Mr. Rivera denied stalking appellant; acknowledged sending her a text
on November 24, 2011 wishing her a Happy Thanksgiving, but denied any malicious intent. He
also stated that November 24, 2011 was the last time he texted appellant. Mr. Rivera
acknowledged that he told appellant that he was her neighbor, but only in a friendly way. He
denied standing at the employing establishment parking lot on December 15, 2011, noting that
on that date he attended his sister’s funeral in Sacramento. On December 21, 2011 Mr. Rivera
clocked out from work at 5:30 p.m. and left immediately to pick up his wife in San Francisco and
they went to his sister-in-law’s residence in that city. He acknowledged that he showed up on
appellant’s route in November 2011, but was only there in response to her request for assistance
with delivery tasks. Mr. Rivera stated that he agreed to help appellant on her route if he could
complete his own route in time to do so.
In an EEO affidavit dated June 26, 2012, Mr. Purdy stated that on December 21, 2011 he
saw Mr. Rivera in the employing establishment parking lot around 6:00 p.m. He opined that a
“friendship went bad” between appellant and Mr. Rivera. Mr. Purdy stated that he had known
Mr. Rivera for 13 years. He noted that Mr. Rivera was helpful and well-liked at work.
Mr. Purdy stated that Mr. Rivera was a “young single man” who appeared to be interested in
more than friendship with appellant. Appellant told him of her allegations about Mr. Rivera.
Mr. Purdy stated that he did not know whether appellant found Mr. Rivera’s conduct
unwelcome. In a June 27, 2012 EEO affidavit, Mr. Bragg stated that he worked with appellant
for 25 years and with Mr. Rivera for 10 years. He characterized Mr. Rivera’s conduct toward
appellant as “overly friendly” inasmuch as appellant told him that Mr. Rivera sent her notes
expressing love. Mr. Bragg stated that appellant told him that Mr. Rivera’s conduct was
unwelcome.

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In a December 13, 2012 reply, counsel contended that, as per Dr. Karalis’ testimony, the
text messages that Mr. Rivera sent to appellant were sexual in nature. He submitted a
December 12, 2012 statement by Mr. Christomo who noted that he and appellant met with
Mr. Silberberg before December 16, 2011 to address her concerns about Mr. Rivera’s conduct.
Counsel argued that the employing establishment did not promptly discipline Mr. Rivera
following such meeting, and also failed to disclose to appellant documents related to her EEO
complaint.
In a December 31, 2012 decision, OWCP’s hearing representative affirmed OWCP’s
July 13, 2012 decision, finding that the additional evidence added to the record did not establish
any compensable work factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.7 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
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 her regular duties, these could constitute employment factors.10
5

Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
8

William H. Fortner, 49 ECAB 324 (1998).

9

Ruth S. Johnson, 46 ECAB 237 (1994).

10

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

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However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.11
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.12 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.13
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.14 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.15
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between appellant’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
and accurate factual and medical background of appellant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by appellant.16
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must, thus,
initially review whether these alleged incidents and conditions of employment are covered
11

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

12

Pamela R. Rice, 38 ECAB 838, 841 (1987).

13

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

14

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

15

Id.

16

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

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employment factors under the terms of FECA. The Board notes that appellant’s allegations do
not pertain to her regular or specially assigned duties under Cutler.17 Rather, appellant has
alleged error and abuse in administrative matters and harassment by a coworker.
Appellant claimed that Mr. Rivera, a coworker, subjected her to sexual harassment. The
employing establishment denied that she was harassed and she has not submitted sufficient
evidence to establish that she was harassed by Mr. Rivera within the meaning of FECA.18
Appellant alleged that Mr. Rivera engaged in actions which she believed constituted harassment,
but she provided insufficient corroborating evidence to establish her claim.
The record establishes that Mr. Rivera sent text messages to appellant. However, the text
messages of record do not on their face constitute sexual harassment. Moreover, there is no EEO
finding of sexual harassment. Mr. Rivera denied any malicious intent in sending the text
messages. The content of most of the messages, such as holiday greetings, may be deemed
friendly or otherwise innocuous. Although the Board has recognized the compensability of
verbal abuse in certain circumstances, this does not imply that every statement uttered in the
workplace will give rise to coverage under FECA.19 One text message expressing affection (a
message stating “I will always love you”) does not constitute a persistent pattern of harassment.
Appellant has not shown how such an isolated comment would rise to the level of sexual
harassment or verbal abuse or otherwise fall within the coverage of FECA.20
Moreover, the statements of Mr. Purdy, Mr. Bragg, Ms. To and Mr. Christomo do not
corroborate the sexual harassment allegations. The witnesses did not indicate that they witnessed
the events alleged by appellant. Opinions by witnesses that Mr. Rivera was “overly friendly” or
even “obsessed with” appellant do not establish that harassment occurred as claimed as they are
too vague. This testimony does not show that Mr. Rivera followed appellant on the highway or
at shops, stores or to other locations. The OIG investigation showed that on most alleged
occasions Mr. Rivera was working for the employing establishment or Hertz, or was out of town.
Mr. Rivera was not working on January 6, 2012 or engaging in carpooling and he denied being at
appellant’s residence on such date. The South San Francisco Police report regarding the events
of January 6, 2012 does not contain any findings. The record does not establish that
Mr. Rivera’s presence at the employing establishment parking lot on December 21, 2011
constituted harassment. Mr. Rivera stated that he clocked out at 5:30 p.m. on December 21,
2011 and left immediately. Mr. Purdy saw Mr. Rivera on the lot a half-hour later at 6:00 p.m.,
but his presence at the employing establishment premises does not constitute harassment. He did
not observe Mr. Rivera interacting with appellant in the parking lot on that date.
17

See Cutler supra note 5.

18

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
19

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

20

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

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In addition, harassment has not been established based on Mr. Rivera living in appellant’s
neighborhood or parking his vehicle near her home. Mr. Rivera explained that his nephew had
an apartment in appellant’s neighborhood and he stayed there for a time. He stated that he told
appellant that they were neighbors in a friendly way. The OIG report showed that Mr. Rivera
was not in appellant’s vicinity on January 20, 2012 and appellant’s allegation about the events of
that date covered a time and location when she was off duty. As noted, there is no EEO finding
of record that Mr. Rivera’s presence in appellant’s neighborhood at times was sexual harassment.
The record does not support appellant’s allegation that Mr. Rivera placed an envelope containing
money in a locked apartment mailbox on her route. Mr. Rivera denied the allegation and
Ms. Williams, the apartment manager, did not corroborate it. The record does not contain an
EEO finding that Mr. Rivera placed the envelope and money in the mailbox or that Mr. Rivera
wrote or placed derogatory notes or signs about appellant at the employing establishment.
Appellant’s reaction to Mr. Rivera’s route deviations and washing her postal vehicle are
not compensable employment factors. The employing establishment disciplined Mr. Rivera for
such actions, but it based this action on general violation of service regulations rather than as a
form of harassment. The evidence does not establish that Mr. Rivera tried to hug appellant at an
apartment complex on her route. Ms. Williams stated that she observed two letter carriers at the
apartment complex, without seeing anything unusual occur. In sum, the evidence of record does
not establish that Mr. Rivera harassed appellant or otherwise establish the existence of such
alleged harassment.21 On appeal, counsel cited various Board cases dealing with harassment and
stalking of coworkers, but the evidence submitted to the record does not substantiate appellant’s
allegations. For these reasons, appellant has not established a compensable employment factor
under FECA with respect to her claims regarding harassment by Mr. Rivera.
Appellant alleged that the employing establishment erred by not disciplining Mr. Rivera.
Such administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA. The Board has held
that, where the evidence establishes error or abuse on the part of the employing establishment in
what would otherwise be an administrative matter, coverage will be afforded.22 Appellant has
not established her allegations that the employing establishment failed to discipline Mr. Rivera in
a timely manner or failed to disclose EEO documents. The employing establishment suspended
Mr. Rivera for 14 days for violations of service regulations. The record does not contain a
grievance or EEO finding that such discipline was untimely or improper. The record does not
contain any grievance or EEO finding regarding administrative matters and appellant has not
otherwise established her claim that management committed error or abuse in these
administrative matters.

21

The record contains a March 20, 2012 stipulation and order, voluntarily entered into by appellant and
Mr. Rivera, which dictated that the two would not have any communications or meetings with each other. However,
the document indicated that neither party acknowledged past liability or fault.
22

See supra notes 7 through 9.

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For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.23
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

23

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, BOULDER
VALMONT POST OFFICE, Boulder, CO,
Employer
__________________________________________

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

Docket No. 08-1382
Issued: January 6, 2009

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 April 9, 2008 appellant filed a timely appeal of a January 4, 2008 merit decision of
the Office of Workers’ Compensation Programs, finding that he did not sustain an emotional
condition in the performance of duty and a March 25, 2008 nonmerit decision, denying his
request for review of the written record by an Office hearing representative as untimely.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this
claim.
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 denied appellant’s
request for a review of the written record as untimely pursuant to 5 U.S.C. § 8124.

FACTUAL HISTORY
On November 11, 2007 appellant, then a 60-year-old customer service supervisor, filed a
traumatic injury claim alleging that on November 10, 2007 he became totally stressed out upon
receipt of a letter from the Equal Employment Opportunity (EEO) Office of Dispute Resolution
regarding the investigation into his harassment and discrimination claims which he alleged
included statements from the employing establishment containing untruths. On November 23,
2007 the employing establishment controverted the claim as appellant was not at work when he
received the letter and EEO activities are generally not compensable.
In a letter dated November 23, 2007, the employing establishment controverted the claim
on the grounds that the injury was sustained while appellant was not at work and not performing
any official duties at his home. It noted that appellant attributed his depression and stress to
receipt of a letter at his home from the Colorado District EEO Office on his complaint.
By letter dated November 27, 2007, the Office advised appellant that the evidence
submitted was insufficient to establish his claim. It addressed the additional factual and medical
evidence he needed to submit within 30 days to support his claim. Also on November 27, 2007
the Office requested that the employing establishment respond to appellant’s allegations and
provide a statement from a knowledgeable supervisor on the accuracy of appellant’s statements
regarding the alleged November 10, 2007 incident within 30 days.
On November 30, 2007 the Office received a November 24, 2007 letter from appellant
noting his disagreement with the Office’s statement that he had not established his claim as he
had submitted a copy of the national EEO investigation. Appellant alleged that his supervisors
and coworkers involved in the investigation lied and, as they are his immediate supervisors, he
has established his claim. With his November 30, 2007 letter, appellant submitted a copy of the
November 7, 2007 precomplaint counseling/final interview letter he had received on
November 10, 2007, his November 9, 2007 response to allegations made against him in his EEO
complaint and a November 12, 2007 disability slip by Dr. Sally C. Berger, a treating Boardcertified family practitioner, indicating appellant could return to work on November 26, 2007.
On December 5, 2007 the Office received a November 26, 2007 disability slip by
Dr. Berger. Subsequently, it received a November 26, 2007 report by Dr. Berger diagnosing
work stress. Dr. Berger noted that appellant had previously been treated for job-related
depression stress and that he saw her on November 12, 2007 for a recurrence of that condition.
Appellant attributed his depression and stress to his belief that his job was threatened and his
inability to “be productive at work under his present management.” In concluding, Dr. Berger
attributed appellant’s current symptoms and mood to work stress and recommended he take “a
leave of absence from work while he resolves the present difficulties.”
On December 7, 2007 the Office received an undated letter from appellant responding to
the Office’s November 27, 2007 request for additional information. It reviewed the facts and the
circumstances surrounding the November 10, 2007 incident.1
1

Appellant also included a description of the allegations contained in his EEO complaint, which are not part of
this appeal.

2

Subsequently the Office received additional evidence from appellant regarding his EEO
claim. The evidence included: appellant’s November 12, 2007 response to allegations made
against him in his EEO complaint; a December 21, 2007 memorandum regarding the expiration
of his continuation of pay eligibility; a December 27, 2007 letter from the employing
establishment challenging appellant’s EEO allegations; a November 7, 2007 preletter from the
EEO Office of Dispute Resolution; a December 17, 2007 letter and an undated response to
appellant’s EEO allegations from Joshua Fordham, appellant’s supervisor; an undated response
to appellant’s EEO allegations by Keith Coleman, postmaster Boulder; an undated response to
appellant’s EEO allegations by Julie Shaffer, manager customer service operations, Denver west;
an undated response to appellant’s EEO allegations by Jarmin Smith, manager, post office
operations (B); an undated response to appellant’s EEO allegations by Jaime Osborne, manager,
customer service services, Boulder Flatirons; an undated response to appellant’s EEO allegations
by Servo Garza, postmaster Grand Junction; an undated response to appellant’s EEO allegations
by Selwyn D. Epperson, district manager, customer service sales, Colorado/Wyoming district; an
undated response to appellant’s EEO allegations by Lee Carruthers, postmaster, Aurora; a
December 20, 2007 by Dr. David R. Torres, a treating psychiatrist, diagnosing depression and
noting appellant attributed his condition to age and sex discrimination by the employing
establishment; disability notes dated November 12 and 26, 2007 by Dr. Berger.
By decision dated January 4, 2008, the Office denied the claim on the basis that appellant
had not established a compensable factor of employment. Specifically, it found appellant’s
reaction to the November 7, 2007 EEO letter to be unrelated to his assigned duties.2
In a letter dated February 22, 2008 and postmarked February 28, 2008, appellant
requested a review of the written record by an Office hearing representative.
By decision dated March 25, 2008, the Office denied appellant’s request for a review of
the written record by an Office hearing representative. It stated that his request was dated
February 22, 2008 and postmarked February 23, 2008, which was more than 30 days after the
issuance of the Office’s January 4, 2008 decision, and that he was therefore not entitled to a
hearing as a matter of right. The Office nonetheless considered the matter in relation to the issue
involved and denied appellant’s request on the grounds that the issue was factual and medical in
nature and could be addressed through the reconsideration process by submitting additional
evidence.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.3 There are situations where an injury or an
2

The Office adjudicated appellant’s claim as a traumatic injury based on his claim form and initial allegation. A
traumatic injury refers to injury caused by a specific event or incident or series of incidents occurring within a single
workday or work shift whereas an occupational disease refers to an injury produced by employment factors which
occur or are present over a period longer than a single workday or work shift. 20 C.F.R. § 10.5(ee), (q); Brady L.
Fowler, 44 ECAB 343, 351 (1992). The Board notes that appellant submitted evidence regarding his EEO claim of
age and sex discrimination, which occurred over more than one day. Appellant is not precluded from filing an
occupational disease claim based on his EEO allegations of age and sex discrimination.
3

L.D., 58 ECAB ___ (Docket No. 06-1627, issued February 8, 2007).

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illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.4 Where the disability results from an
employee’s emotional reaction to his regular or specially assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.5 On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or his frustration from not being permitted
to work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.7 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
In cases involving emotional conditions, the Board has held that, 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.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor.11 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.12

4

A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006).

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008); Gregorio E. Conde, 52 ECAB 410 (2001).

7

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); Matilda R. Wyatt, 52 ECAB 421
(2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
8

See M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007); William H. Fortner, 49 ECAB
324 (1998).
9

Ruth S. Johnson, 46 ECAB 237 (1994).

10

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

11

K.W., supra note 7.

12

Robert Breeden, 57 ECAB 622 (2006).

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ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty causally related to factors of his
federal employment. At the time he filed his compensation claim, he attributed his stress to the
receipt of letter while he was at home from the EEO Office of Dispute Resolution regarding the
investigation into his harassment and discrimination claims which he alleged included statements
from the employing establishment containing lies. An employee’s emotional reaction to an
administrative or personnel matter is generally not covered by workers’ compensation.13
However, 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.14 The
Board finds that appellant has not provided any evidence establishing error or abuse by the
employing establishment with respect to the November 7, 2007 EEO letter.15
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that a claimant is entitled to a hearing before an
Office representative when a request is made within 30 days after issuance of and Office final
decision.16 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.17 The Office has
discretion, however, to grant or deny a request that is made after this 30-day period.18 In such a
case, the Office will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.19
ANALYSIS -- ISSUE 2
Appellant’s request dated February 22, 2008 and postmarked February 23, 2008, for
review of the written record by an Office hearing representative was made more than 30 days
after the date of issuance of the Office’s prior decision dated January 4, 2008 and, thus, appellant
was not entitled to a review of the written record as a matter of right. He requested a review of
the record by an Office hearing representative in a letter dated February 22, 2008 and
postmarked February 23, 2008. Hence, the Board finds that the Office properly denied
appellant’s request for a review of the written record as a matter of right because his request for a

13

L.S., 58 ECAB ___ (Docket No. 06-1808, issued December 29, 2006).

14

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

15

As appellant has not established a compensable work factor, it is not necessary to address the medical evidence.
T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); Barbara J. Latham, 53 ECAB 316 (2002).
16

5 U.S.C. § 812(b)(2). See A.B., 58 ECAB ___ (Docket No. 07-387, issued June 4, 2007).

17

20 C.F.R. § 10.616(b).

18

Hubert Jones, Jr., 57 ECAB 467 (2006).

19

Teresa M. Valle, 57 ECAB 542 (2006).

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review of the written record was not made within 30 days of the Office’s January 4, 2008
decision.
While the Office also has the discretionary power to grant a review of the written record
when a claimant is not entitled to a review of the written record as a matter of right, the Office, in
its March 25, 2008 decision, properly exercised its discretion by stating that it had considered the
matter in relation to the issue involved and had denied appellant’s request for a review of the
written record on the basis that his claim could be addressed through a reconsideration
application. The Board has held that, as the only limitation on the Office’s authority is
reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deduction from established facts.20 In the present case, the evidence of record does not
indicate that the Office committed any act in connection with its denial of appellant’s request for
a review of the written record which could be found to be an abuse of discretion.
CONCLUSION
The Board finds appellant has not met his burden of proof that he sustained an emotional
condition in the performance of duty. The Board further finds that the Office properly denied his
request for an oral hearing as untimely.

20

Teresa M. Valle, supra note 19; Daniel J. Perea, 42 ECAB 214 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 25 and January 4, 2008 and are affirmed.
Issued: January 6, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, TRANSPORTATION
OPERATIONS, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-1818
Issued: January 29, 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 June 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 16, 2007 nonmerit decision denying his request for an oral
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over this
nonmerit decision. The last merit decision of record was the Office’s April 18, 2003 decision
denying appellant’s claim that he sustained an employment-related injury on February 28, 2003.
Because more than one year has elapsed between the last merit decision and the filing of this
appeal, the Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for a hearing under
section 8124 of the Federal Employees’ Compensation Act.

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On February 28, 2003 appellant filed a traumatic injury claim alleging that he injured his
left ankle at work on that date. He did not stop work at that time. In an April 18, 2003 decision,
the Office denied appellant’s claim on the grounds that he did not submit sufficient medical
evidence to establish that he sustained an injury in the performance of duty on
February 28, 2003.
In a May 18, 2006 letter, appellant stated that he wanted “a hearing or reconsideration” in
connection with the denial of his claimed ankle injury. In a February 2, 2007 letter received by
the Office on February 5, 2007, appellant stated that he was “requesting a hearing in front of an
administration judge.”
In a March 16, 2007 decision, the Office denied appellant’s request for a hearing before
an Office hearing representative. It determined that appellant’s hearing request was untimely as
it was filed more than three years after the Office’s last merit decision dated April 18, 2003. The
Office then exercised its discretion and determined that appellant’s claim could equally well be
addressed by submitting new evidence establishing that he sustained an employment-related
injury.
LEGAL PRECEDENT
Section 8124(b)(1) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before
a representative of the Secretary.”2 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made with in the requisite 30 days.3
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.4 Specifically, the Board has held that the Office
has the discretion to grant or deny a hearing request on a claim involving an injury sustained
prior to the enactment of the 1966 amendments to the Act which provided the right to a hearing,5
when the request is made after the 30-day period for requesting a hearing,6 and when the request
2

5 U.S.C. § 8124(b)(1).

3

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

4

Henry Moreno, 39 ECAB 475, 482 (1988).

5

Rudolph Bermann, 26 ECAB 354, 360 (1975).

6

Herbert C. Holley, 33 ECAB 140, 142 (1981).

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is for a second hearing on the same issue.7 The Board has held that as the only limitation on the
Office’s authority is reasonableness, abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deduction from established facts.8
ANALYSIS
Appellant’s February 2007 hearing request was made more than 30 days after the issuance
of the Office’s April 18, 2003 merit decision. Therefore, appellant is not entitled to a hearing as a
matter of right. The Office properly found in its March 16, 2007 decision that appellant was not
entitled to a hearing as a matter of right because his hearing request was not made within 30 days
of the Office’s April 18, 2003 decision.9
The Office also has the discretionary power to grant a hearing when a claimant is not
entitled to a hearing as a matter of right. In its March 16, 2007 decision, the Office properly
exercised its discretion by stating that it had considered the matter in relation to the issue involved
and had denied appellant’s hearing request on the basis that the issue could be resolved by
submitting additional evidence to establish that his injury was causally related to employment
factors.10 The evidence of record does not establish that the Office abused its discretion in denying
appellant’s hearing request.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing under
section 8124 of the Act.

7

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

8

Daniel J. Perea, 42 ECAB 214, 221 (1990).

9

Appellant submitted a May 18, 2006 letter in which he stated that he wanted “a hearing or reconsideration” in
connection with the denial of his claimed ankle injury, but he did not unequivocally file a request for a hearing until
the Office received his February 2, 2007 letter on February 5, 2007. Even if the May 18, 2006 letter were
considered to constitute a hearing request, appellant would not have filed a hearing request in a timely manner.
10

See Steven A. Anderson, 53 ECAB 367 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 16, 2007 decision is affirmed.
Issued: January 29, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE ARMY, ARMY TANK
AUTOMOTIVE ARMAMENTS COMMAND,
RED RIVER ARMY DEPOT, Texarkana, TX,
Employer
__________________________________________

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

Docket No. 12-1440
Issued: December 13, 2012

Case Submitted on the Record

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

JURISDICTION
On June 22, 2012 appellant appealed a May 29, 2012 decision of the Office of Workers’
Compensation Programs (OWCP) denying his request for reconsideration of the merits of his
claim. As more than 180 days has elapsed from the last merit decision of September 9, 2010 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 does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to demonstrate
clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that delays in filing his request for reconsideration were
not as a result of his error or failure to respond. He specifically indicated that OWCP’s request
for further information was sent to the employing establishment at an improper address and he
failed to timely file his reconsideration request because he had been assisting his sister who had a
heart transplant. Appellant submitted additional information that supported his claim that should
have been discussed by OWCP.
FACTUAL HISTORY
On July 27, 2010 appellant, then a 55-year-old maintenance systems analyst, filed an
occupational disease claim alleging asbestosis as a result of his federal employment. He worked
at the employing establishment since 1973 and was exposed to asbestos since 1984. Appellant
listed the date of awareness of his condition as June 30, 2010. He did not submit any evidence
with his claim.
By letter dated August 4, 2010, OWCP requested further information from appellant. By
another letter of that date, it asked the employing establishment to provide further information.
By letter dated August 11, 2010, the employing establishment controverted the claim. Appellant
did not file a timely response to OWCP’s letter.
By decision dated September 9, 2010, OWCP denied appellant’s claim. It found that he
had not established that he experienced the claimed occupational exposure at the time, place and
in the manner alleged.
By letter dated February 29, 2012, appellant requested reconsideration. He stated that the
purpose of his claim was to create a record based on his June 29, 2010 examination at the
employing establishment’s medical clinic. During the physical, a physician noted evidence of
what could be attributed to an old exposure to asbestos. At the time, appellant had no medical
condition requiring treatment, but wanted to ensure that the findings were documented. He had
been employed at the employing establishment since June 24, 1973 in various capacities in
multiple buildings. To the best of appellant’s knowledge, his work did not require him to work
directly with any asbestos impregnated materials, but in many of the buildings where he worked,
steam pipes and floor tiles were impregnated with asbestos.
Appellant submitted a note dated February 21, 1985 from W.S. Tyson, Jr., Director of
Health Services at the employing establishment. Mr. Tyson noted that appellant was potentially
exposed to asbestos fibers on the second floor of Building 345 during the week of November 5,
1984 as a result of a contractor’s error. Appellant also submitted results and reports from Texas
Research Institute, Inc. Dr. John W. Goodwin, an industrial hygienist, noted that, on
November 6, 1984, he received a telephone call from a supervisor in building 345/2 that asbestos
was scattered everywhere by the removal contractor from the night before. He advised that
sweeping be stopped and that workers be relocated until an investigation was made.
Dr. Goodwin noted that testing confirmed the matter as asbestos and that asbestos samples taken
that date showed .117 fibers/cc, .236 fibers/cc and .037 fibers/cc. He advised that the
permissible limit for asbestos fibers over 2 fibers per cc. The air samples taken on November 8,
1984 were interpreted as negative. Dr. Goodwin noted that on November 13, 1984 a repeat

2

inspection was made and the conditions were found to be satisfactory. Appellant also submitted
newspaper clippings with regard to this incident.
Appellant submitted chest x-rays obtained from May 5, 2003 to November 17, 2011
which was interpreted as evincing possible prior asbestos exposure. He also submitted copies of
his annual fitness evaluations for the employing establishment. Evaluations noted that an
asbestos questionnaire was reviewed and appellant also had a history of tobacco use and allergic
rhinitis.
By decision dated May 29, 2012, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.2 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.3
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.4 OWCP regulations and procedure provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish

2

20 C.F.R. § 10.607(a).

3

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

4

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

5

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). OWCP’s procedures further provide: “The term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that [OWCP] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c
6

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

7

See Leona N. Travis, 43 ECAB 227, 240 (1991).

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clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.11
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original decision.12 As appellant’s February 29, 2012 request for
reconsideration was submitted more than one year after the last merit decision, i.e., the
September 9, 2010 decision denying his claim, his request was untimely. Consequently, he must
demonstrate clear evidence of error by OWCP in denying his claim for reconsideration.
Appellant has not established clear evidence of error. In support of his reconsideration,
he submitted evidence indicating that there was an asbestos exposure incident at this place of
employment, but this evidence does not establish that he was working near the asbestos on the
date of the incident. Although Mr. Tyson indicated that appellant was “potentially” exposed to
asbestos there was no positive proof establishing that fact. The newspaper articles do not
constitute relevant evidence as the Board has held that newspaper clippings, medical texts and
excerpts from publications are of no evidentiary value in establishing the necessary causal
relationship as they are of general application and are not determinative of whether the specific
condition claimed was causally related to the particular employment injury involved.13 The
Board further notes that appellant has not submitted medical evidence diagnosing a medical
condition. Although the x-rays show evidence of possible asbestos exposure, there is no
diagnosis of asbestosis. Even if there had been such medical evidence, the Board has found that
even a well-rationalized medical report that, if timely filed could have created a conflict in
medical evidence, is insufficient to establish clear evidence of error.14

8

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

9

See supra note 7.

10

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

11

Leon D. Faidley, Jr., supra note 3.

12

20 C.F.R. § 10.607(b).

13

K.T., Docket No. 11-1570 (issued February 2, 2012).

14

E.R., Docket No. 09-599 (issued June 3, 2009); Joseph R. Santos, 57 ECAB 554 (2006).

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The term clear evidence of error is intended to represent a difficult standard.15 In order to
establish clear evidence of error, the evidence submitted must be of sufficient probative value to
raise a substantial question as to the correctness of OWCP’s decision.16 The evidence appellant
submitted on reconsideration fails to meet this standard.
On appeal, appellant asserts that OWCP’s follow-up letter to the employing
establishment was not sent to the proper address. The Board notes that the letter was sent to the
employing establishment on August 4, 2010 and it controverted not only the timeliness but also
the merits of his claim by memorandum dated August 11, 2010.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 29, 2012 is affirmed.
Issued: December 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

S.S., Docket No. 11-1579 (issued April 24, 2012).

16

See Veletta C. Coleman, 48 ECAB 367 (1997).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 14-1801
Issued: January 26, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2014 appellant, through his representative, filed a timely appeal of a
June 16, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation for
wage-loss and medical benefits effective February 12, 2013; and (2) whether he had any
continuing employment-related residuals or disability on or after February 12, 2013.
On appeal counsel argues that the decision is contrary to law and fact.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 19, 2003 appellant, then a 52-year-old transportation security screener, filed a
traumatic injury claim alleging that on that day he injured his lower back while lifting heavy
bags and boxes from the conveyer belt. OWCP accepted the claim for lumbar strain/sprain,
which was expanded to include aggravation of lumbar radiculopathy and aggravation of
degenerative disc disease. By letter dated September 14, 2005, appellant was placed on the
periodic rolls for temporary total disability.
On August 13, 2012 OWCP referred appellant for a second opinion evaluation with
Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon, to determine his current medical
status.
In an August 31, 2012 report, based upon a physical examination, statement of accepted
facts, occupational history, and review of the medical evidence, Dr. Obianwu diagnosed resolved
lumbar sprain, resolved degenerative disc disease aggravation, resolved lumbar radiculopathy
aggravation, and chronic degenerative lumbar disc disease. A physical examination revealed a
surgical scar on appellant’s back, no tightness of the lumbar spine muscles, ability to get up from
the examining table, no atrophy of the lower extremities, and tenderness localized at the L4
spinous process. Dr. Obianwu stated that appellant arrived with a cane and displayed excessive
pain behaviors on examination. He found no concrete evidence of lumbar radiculopathy on his
examination. The straight leg testing was negative but there was evidence of symptom
magnification.
As to the lumbar spine, Dr. Obianwu concluded that the employment injury caused a
temporary aggravation based on the increased pain appellant complained of following the 2003
injury. He noted that appellant’s preexisting lumbar degenerative disc disease would worsen
with age and his current condition was unrelated to the accepted employment injury.
Dr. Obianwu recommended electrodiagnostic testing to determine if appellant had true
radiculopathy. He found appellant disabled from performing his date-of-injury position, due to
his age-related lumbar spine changes.
In an October 19, 2012 supplemental report, Dr. Obianwu diagnosed resolved lumbar
sprain, resolved degenerative disc disease aggravation, resolved lumbar radiculopathy
aggravation and chronic degenerative lumbar disc disease. A review of electrodiagnostic tests
performed on October 2, 2012 revealed lower extremity peripheral neuropathy, but no evidence
of lumbar radiculopathy. Dr. Obianwu found no medical evidence supporting aggravation of
lumbar radiculopathy or aggravation of degenerative disc disease continues. Thus, he concluded
that appellant no longer had any residuals or disability due to the accepted employment injuries.
Dr. Obianwu noted appellant’s current problem was his lumbar degenerative disc disease, which
was not employment related.
On January 8, 2013 OWCP issued a notice proposing to terminate appellant’s
compensation benefits based upon Dr. Obianwu’s opinion that appellant’s accepted employment
conditions had resolved.

2

Appellant disagreed with Dr. Obianwu’s opinion in a January 16, 2013 letter and advised
that he was currently being seen by Dr. Louis N. Radden, an osteopathic Board-certified
orthopedic surgeon.
By decision dated February 12, 2013, OWCP finalized the termination of appellant’s
compensation benefits effective that date.
Appellant’s counsel requested reconsideration on December 21, 2013 and submitted
reports from Dr. Radden.
In a November 14, 2012 report, Dr. Radden noted appellant’s medical and employment
injury history. Diagnoses included lumbar strain, lumbar facet syndrome and lumbar disc
degeneration. A physical examination revealed a normal gait, positive posterior midline lower
and positive right and left paramedian lumbar spine tenderness. Dr. Radden reported positive
bilateral straight leg raising, normal hip range of motion, and decreased lumbar spine range of
motion by 50 percent. A review of x-ray interpretation revealed lumbar spondylosis.
Dr. Radden, in a January 23, 2013 report diagnosed lumbar sprain, lumbar disc
herniation, lumbar facet syndrome, and L4-5 symptomatic disc bulge based on a clinical
examination and April 14, 2011 magnetic resonance imaging (MRI) scan. He reviewed
Dr. Obianwu’s August 31, 2012 report and noted his disagreement with Dr. Obianwu’s opinion
that appellant’s condition had resolved and that there was symptom magnification. Dr. Radden
opined that appellant’s L4-5 disc bulge was causally related to the accepted July 2003
employment injury either by direct causation or by aggravation of a preexisting condition. With
respect to the negative electromyography test, he agreed with Dr. Obianwu that the diagnostic
test showed peripheral neuropathy and no radiculopathy. Despite these findings, Dr. Radden
opined that appellant’s radiculopathy had not resolved as the diagnostic testing is used to
determine the extent of any nerve damage.
In a June 3, 2013 report, Dr. Radden conducted a physical examination which showed
symptoms and signs of lumbar degenerative disc disease. He recommended a core exercise
program for appellant.
By letter dated January 6, 2014, OWCP advised appellant and counsel that it could not
communicate with the counsel as no authorization form signed by appellant had been submitted.
Appellant was given 30 days to provide the requested signed authorization form. No signed
authorization form was submitted.2
On March 10, 2014 OWCP dismissed the December 21, 2013 reconsideration request by
counsel as no signed authorization form had been received by OWCP.

2

The record reveals that on January 9, 2014 OWCP found a conflict in the medical opinion evidence between
Dr. Radden, for appellant, and Dr. Obianwu, an OWCP second opinion physician, and recommened that appellant
be seen by an impartial medical examiner. However, OWCP did not notify appellant’s representative of this as no
attorney authorization was of record.

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On March 18, 2014 OWCP received a signed authoration form, a March 18, 2013
reconsideration request, the December 21, 2013 reconsideration request, and medical evidence
that was submitted with the December 21, 2013 request for reconsideration.
By decision dated June 16, 2014, OWCP denied modification.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.3 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.4 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for lumbar strain/sprain, aggravation of lumbar
radiculopathy, and aggravation of degenerative disc disease. It terminated his compensation
benefits effective February 12, 2013 on the grounds that the accepted employment-related
conditions had resolved without residuals based on the reports of Dr. Obianwu, a Board-certified
orthopedic surgeon and second opinion physician. The issue to be determined is whether OWCP
met its burden to terminate appellant’s compensation benefits.
The Board finds that OWCP met its burden of proof to terminate appellant’s medical and
wage-loss compensation benefits based on the August 31 and October 19, 2012 reports of
Dr. Obianwu who reviewed his medical history, examined him, and found no objective evidence
of ongoing employment-related residuals or disability due to the accepted conditions of lumbar
strain/sprain, aggravation of lumbar radiculopathy, and aggravation of degenerative disc disease.
Dr. Obianwu reviewed the statement of accepted facts and the medical record. He found no
concrete evidence of lumbar radiculopathy on his examination as the straight leg testing was
negative and there was evidence of symptom magnification. As to the lumbar spine conditions,
Dr. Obianwu concluded that appellant had a temporary aggravation based on the increased pain
appellant complained of following the employment injury. He noted that appellant had
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

Kathryn E. Demarsh, supra note 6; James F. Weikel, 54 ECAB 660 (2003).

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preexisting lumbar degenerative disc disease which would worsen with age and any aggravation
caused by the employment injury had resolved. Dr. Obianwu concluded that appellant had
recovered from the accepted employment conditions, but was disabled from working his date-ofinjury job due to his preexisting degenerative disc disease. In the October 19, 2012 supplemental
report, he diagnosed resolved lumbar sprain, resolved degenerative disc disease aggravation,
resolved lumbar radiculopathy aggravation and chronic degenerative lumbar disc disease based
on the findings of the October 2, 2012 electrodiagnostic test, which revealed lower extremity
peripheral neuropathy, but no evidence of lumbar radiculopathy.
The Board finds that, as Dr. Obianwu’s reports are well rationalized and based upon a
complete and accurate history, his opinion is sufficient to represent the weight of the medical
evidence in this case. There was no contrary medical evidence at the time of the referral to
Dr. Obianwu or when OWCP terminated his compensation benefits. Therefore, the Board finds
that OWCP properly terminated appellant’s wage-loss and medical compensation benefits
effective February 12, 2013, as the weight of the competent medical evidence established that the
accepted July 19, 2003 lumbar strain/sprain, aggravation of lumbar radiculopathy, and
aggravation of degenerative disc disease had resolved without residuals.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish that he had any disability causally related to his accepted
injury.8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.9 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.10
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision on the issue of whether
appellant established that he has continuing residuals and disability due to his accepted July 19,
2003 employment due to an unresolved conflict in medical opinion evidence.
As discussed above, the weight of the medical evidence at the time of the termination
rested with Dr. Obianwu, who concluded that appellant no longer had any residuals due to his
accepted employment injuries. Based on his physical findings and review of the medical and
factual evidence, Dr. Obianwu determined that appellant’s current disability and condition was
8

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

9

5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
10

A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

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due to his preexisting degenerative disc disease and aggravation caused by the natural process of
aging.
In support of his request for reconsideration, appellant’s counsel submitted reports from
Dr. Radden, appellant’s treating physician, who diagnosed lumbar strain, lumbar facet syndrome
and lumbar disc degeneration. Dr. Radden reported a normal gait, positive posterior midline
lower and positive right and left paramedian lumbar spine tenderness, positive bilateral straight
leg raising, normal hip range of motion, and decreased lumbar spine range of motion by 50
percent. A review of x-ray interpretation revealed lumbar spondylosis. Based on an April 14,
2011 MRI scan and clinical findings, Dr. Radden diagnosed an L4-5 symptomatic disc bulge.
He reviewed Dr. Obianwu’s report and noted his disagreement with Dr. Obianwu’s opinion that
appellant’s condition had resolved and that there was symptom magnification. Dr. Radden
opined that appellant’s L4-5 disc bulge was causally related to the accepted July 2003
employment injury either by direct causation or by aggravation of a preexisting condition. With
respect to the negative electromyography test, he agreed with Dr. Obianwu that the diagnostic
test showed peripheral neuropathy and no radiculopathy. However, Dr. Radden opined that
appellant’s radiculopathy had not resolved as the diagnostic testing is used to determine the
extent of any nerve damage.
The Board finds a conflict in medical opinion between Dr. Obianwu and Dr. Radden,
with respect to whether appellant continues to have any disability or residuals due to the
accepted July 19, 2003 employment injury. Therefore, the case will be remanded to refer
appellant to an impartial medical examiner to resolve the conflict, pursuant to 5 U.S.C.
§ 8123(a). Following this and any further development of the medical evidence, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that OWCP met its burden to terminate appellant’s compensation
benefits effective February 12, 2013. The Board further finds that this case is not in posture for
decision as to whether appellant has established continuing residuals and disability due to an
unresolved conflict in the medical opinion evidence.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 16, 2014 is affirmed with respect to the termination of
appellant’s compensation benefits and remanded for consideration of continuing residuals as set
forth in the decision above.
Issued: January 26, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kenosha, WI, Employer
__________________________________________

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

Docket No. 12-1468
Issued: December 5, 2012

Case Submitted on the Record

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

JURISDICTION
On June 27, 2012 appellant timely appealed the May 30, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her traumatic injury claim.
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 claim.2
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
April 11, 2012.

1
2

5 U.S.C. §§ 8101-8193.

The current record includes evidence received after OWCP issued its May 30, 2012 final decision. Appellant
also submitted additional medical evidence with her June 27, 2012 appeal. As this evidence was not part of the
record when OWCP issued its May 30, 2012 decision, the Board is precluded from considering it for the first time
on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 57-year-old letter carrier, filed a traumatic injury claim (Form CA-1) for low
back strain that allegedly occurred April 11, 2012 while delivering mail. She claimed to have
been injured while “turning with a weighted mailbag.” Appellant stated that she had gone up
some stairs to place mail in the mailbox and when she turned to go down the stairs she
experienced a sharp pain in her back which went down her left leg. She had a prior history of
chronic low back pain and left-side sciatica dating back to 2009.
Dr. Robert M. Gullberg, a Board-certified internist, examined appellant on
April 12, 2012.3 He noted that, while at work the previous day, appellant reportedly twisted her
back and felt a shooting pain going down her left flank. There was no reported weakness in the
leg or numbness. Dr. Gullberg also noted that appellant really was not doing any lifting or
anything in particular at the time other than apparently going down some stairs. Physical
examination of her back showed good range of motion. However, appellant was very tender in
the lumbosacral spine from L2 to L4 and there was tenderness into the buttock. Dr. Gullberg
also noted that lateral and forward range of motion was fair. Ambulation was also fair with a
noted mild limp. There were no motor symptoms at the time. Dr. Gullberg’s clinical impression
was “low back pain secondary to a muscle strain likely....” He indicated that there was no need
for an x-ray at the time because he thought it was a “soft tissue” injury. Dr. Gullberg
recommended conservative treatment that included ice and heat therapy. He also prescribed a
muscle relaxant and pain medication and advised appellant to avoid strenuous activity for six
weeks. Dr. Gullberg told appellant to follow up in one week. His follow-up treatment notes
dated April 26, 2012 indicated an impression of musculoskeletal back pain. Dr. Gullberg also
provided several work status reports excusing appellant from work due to left lower back pain.
He released appellant to return to restricted duty effective May 14, 2012. At the time,
Dr. Gullberg imposed a two-hour walking restriction per day.
By decision dated May 30, 2012, OWCP denied appellant’s claim because she failed to
establish that she sustained an injury causally related to the April 11, 2012 employment incident.
It explained that pain was a symptom and not a diagnosis of a medical condition.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of her claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
3

Appellant had been a patient of his for over 20 years. Dr. Gullberg was aware of appellant’s prior history of
left-side sciatica and chronic low back pain.
4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

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The first component is whether the employee actually experienced the employment incident that
is alleged to have occurred.5 The second component is whether the employment incident caused
a personal injury.6 An employee may establish that an injury occurred in the performance of
duty as alleged but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the injury.7
ANALYSIS
Appellant claims to have suffered a left low back strain on April 11, 2012 while
delivering mail. Her long-standing treating physician, Dr. Gullberg, reported a prior history of
chronic low back pain and left-side sciatica dating back to 2009. When he examined appellant
on April 12, 2012, Dr. Gullberg’s clinical impression was “low back pain secondary to a muscle
strain likely....” His follow-up treatment notes from April 26, 2012 indicated an impression of
musculoskeletal back pain.
As OWCP correctly noted, pain is a symptom and not a specific medical diagnosis.
When Dr. Gullberg examined appellant on April 12, 2012, he indicated that her low back pain
was secondary to a muscle strain “likely.” While he surmised that appellant sustained a soft
tissue injury, this does not represent a definitive diagnosis of an employment-related muscle
strain. Moreover, in his April 26, 2012 follow-up treatment notes, Dr. Gullberg made no
mention of a muscle strain, but instead noted musculoskeletal back pain. It is also noteworthy
that Dr. Gullberg did not distinguish appellant’s prior history of chronic low back pain and leftside sciatica from her current low back complaints which she attributed to the April 11, 2012
employment incident. The record at the time OWCP issued its May 30, 2012 decision did not
include a definitive medical diagnosis attributable to the April 11, 2012 employment incident.
Accordingly, OWCP properly denied appellant’s traumatic injury claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
Appellant failed to establish that she sustained an injury in the performance of duty on
April 11, 2012.

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question which generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the May 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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