United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Atwater, CA, Employer
__________________________________________

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Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1969
Issued: September 2, 2010

Case Submitted on the Record

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

JURISDICTION
On July 28, 2009 appellant filed a timely appeal from the July 20, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained a left knee condition causally related to his
federal employment.
On appeal, appellant contends that the statement of accepted facts did not provide a
complete description of his work duties and that the Office referral physician’s report was not
sufficient to establish that his left knee condition was not causally related to his federal
employment. Appellant’s counsel argues that “at a minimum” a conflict exists in the medical
opinion evidence.

FACTUAL HISTORY
On September 11, 2007 appellant, then a 47-year-old correctional officer, filed an
occupational disease claim alleging that he developed left knee degenerative joint disease that he
attributed to prolonged standing, walking, running, bending, twisting, stooping, lifting, carrying,
and wearing a 50-pound duty belt with a radio and other equipment.1 Effective December 22,
2007, he was granted medical disability retirement.
The Office provided the employer an opportunity to respond to the claim and by letter
dated November 19, 2007, Bret Dorethy, a safety manager with the employer, disagreed with
appellant’s description of the lieutenant job duties. Mr. Dorethy noted that a lieutenant’s
position was largely administrative and not physically demanding unless a call for assistance was
activated. Appellant’s position required that he wear a duty belt with keys weighing from 2 to 3
pounds and boots that are approximately 2.5 pounds.2 On occasion he had to physically subdue
an aggressive inmate or respond to a request for assistance from staff. Certain employees, such
as disturbance control team members and special weapons and tactics team members were
required to be more physically fit than others. Appellant, as a lieutenant, supervised these teams
in a command oversight capacity but he last taught physical training one and one half years
previously. From August 6 through September 28, 2006 appellant was on a combination of
continuation of pay, sick leave or annual leave. From September 29, 2006 to March 2, 2007 he
was placed on light duty with medical restrictions for a previous injury claim (xxxxxx004).
These restrictions included no running, climbing, bending or squatting, walking and standing
limited to 15 minutes an hour, no lifting over 10 pounds and minimal inmate contact. According
to the employer, after March 2, 2007, as there was no light duty, appellant was placed on leave
without pay. Appellant filed a Form CA-7 (claim for compensation benefits) with the Office.
The Office terminated his compensation for that claim on July 29, 2007.
By decision dated December 18, 2007, the Office denied appellant’s occupational disease
claim, finding that the evidence did not establish that his left knee condition was causally related
to factors of his employment. Appellant requested a hearing before an Office hearing
representative that was held on June 4, 2008. His testimony included a description of his work
duties.
On February 26, 2008 Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon,
reviewed appellant’s medical history and provided findings on physical examination. He
diagnosed preexisting degenerative arthritis but noted there had been a material change in his
condition. Appellant could no longer run following a July 8, 2006 work incident when he felt a
crunch in his left knee while responding to a staff assistance call. Dr. Tauber reported that
appellant “carried out extensive demanding duties, including standing, bending and twisting” and
1

Appellant has a previous claim under OWCP File No. xxxxxx004 accepted for a traumatic left knee contusion
and internal derangement/loose body on July 8, 2006. On November 6, 2008 the two files were combined.
Effective June 29, 2007, the Office terminated his wage-loss compensation and medical benefits under OWCP File
No. xxxxxx004. Appellant has preexisting left knee conditions, osteoarthritis, internal derangement, patellofemoral
dysfunction and an acromioclavicular (ACL) tear for which he underwent surgery on October 26, 2001, April 27,
2004 and May 19, 2005.
2

On October 31, 2008 Mr. Dorethy estimated that the weight of appellant’s equipment was nine pounds.

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carried a 50-pound belt. These duties in Dr. Tauber’s opinion “at the very least contributed to
[appellant’s] degenerative disease to some extent. No honest physician can state that an
individual who carries out walking, bending and stooping has a zero percent contribution to the
development of arthritis of the knee.” On June 3, 2008 Dr. Tauber clarified that appellant’s duty
belt weighed 15 pounds, not 50 pounds as stated in his February 26, 2008 report.
On May 8, 2008 Lieutenant K.B. White advised that he carried approximately 10 pounds
of equipment while on duty. He was on his feet four hours of every eight-hour shift. On
May 12, 2008 Lieutenant J.L. Shank estimated his equipment weight at 10 pounds. On May 22,
2008 Lieutenant Timothy Miller estimated his equipment at 10 to 12 pounds. He advised that a
lieutenant’s job involved standing and walking for several hours and, during an emergency,
running to provide assistance.
In a September 17, 2008 decision, the Office hearing representative set aside the
December 18, 2007 decision and remanded the case for further development. He directed the
Office to refer appellant, together with a comprehensive statement of accepted facts (SOAF) and
the medical evidence, to a Board-certified orthopedic surgeon for a reasoned opinion as to
whether his work duties caused or contributed to his left knee condition.
An October 31, 2008 SOAF listed the correctional supervisor work duties as provided by
appellant to Dr. Shaw on June 4, 2007. They included wearing a belt with 20 pounds of
equipment and 10-pound work boots, prolonged standing and walking, infrequent running in
emergency situations, occasional inmate takedowns during altercations, repetitive grasping,
pushing, pulling, twisting, kneeling, squatting and lifting. Until March 14, 2007 appellant
worked eight-hour shifts with occasional double shifts. The SOAF noted that the employing
establishment disputed the weight of the duty belt and boots and advised that a lieutenant’s job
involved administrative duties primarily and was not physically demanding except during a call
for assistance. The employing establishment stated that appellant was off work from August 6 to
September 28, 2006 and then on light duty until March 2, 2007 when he was placed on
temporary total disability because light-duty work was not available.
On November 18, 2008 Dr. Alice Martinson, a Board-certified orthopedic surgeon and an
Office referral physician, reviewed appellant’s medical history and provided findings on physical
examination. She diagnosed bilateral patellofemoral arthritis. Appellant began his federal
employment in 1989. In 2001 he was promoted to lieutenant and supervised the entire prison.
Appellant made daily rounds to check on guards and inmates. He walked several miles a day
and climbed several flights of stairs. In emergency situations such as inmate violence, appellant
had to run variable distances. Appellant weighed 195 pounds and was 6 feet, 1 inch in height.
While working at the employing establishment, he was morbidly obese, weighing 285 pounds at
the time of his 2001 knee arthroscopy. He stopped work in April 2007 and weighed 335 pounds
when he underwent gastric bypass surgery in September 2007. Appellant had well-healed
arthroscopy portal scars on the anterior aspect of both knees. He lacked 20 degrees of full left
knee extension. There was audible and palpable patellofemoral crepitus bilaterally with active
and passive flexion and extension. Appellant had a mildly positive left anterior drawer sign in
comparison to the right. He had one centimeter of left thigh atrophy. Knee circumferences were
equal. There was no palpable effusion or increased local heat in either knee. Dr. Martinson
opined that appellant’s job duties as a corrections officer did not cause his left knee condition.

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The occasional exertional weight bearing requirements may have produced temporary
exacerbations of his symptoms. The primary cause of his chronic left knee pain was his longstanding morbid obesity. Following appellant’s weight loss, total knee arthroplasty was not
medically necessary. His bilateral patellofemoral arthritis was not related to his employment.
By decision dated January 7, 2009, the Office denied appellant’s claim on the grounds
that the weight of the medical the evidence, represented by the opinion of Dr. Martinson,
established that his left knee condition was not causally related to factors of his employment.
In a February 3, 2009 report, Dr. Tauber noted that appellant’s job required him to run
and climb in pursuit of individuals. The pivoting and twisting involved in his job aggravated an
arthritic knee. Dr. Tauber stated that appellant’s knees were subject to significant stress from his
work activities and this was a substantially aggravating factor of his underlying knee condition.
He opined that appellant sustained a permanent aggravation of his preexisting degenerative
arthritis as a result of his work activities.
On April 21, 2009 appellant requested reconsideration. He asserted that the October 31,
2008 SOAF did not list all of his work duties. It did not include his 1989 correctional officer
position at a large facility which required extensive walking. Appellant performed searches of at
least five inmate cells each shift and had to bend, stoop and crawl to search for illegal items.
Once a day he responded to emergencies such as inmate altercations. Appellant had to run to the
location, physically restrain inmates and carry uncooperative or injured inmates. When acting as
a rear sally port officer, he conducted searches of vehicles entering the facility, including
crawling underneath vehicles. In 1993 there was an increase in physical confrontations with
inmates. In 1995 and 1997 there were riots. In 1997 a correction officer was murdered. From
1992 to 2007 appellant taught disturbance control to staff once a month. During training, staff
physically restrained appellant and threw him to the ground. In 2001 appellant was promoted
and transferred to a new facility. He installed bunks, carried mattresses, poured concrete, bolted
lockers to walls and spread gravel. When appellant acted as an operations lieutenant, he walked
up to seven hours of an eight-hour shift and performed administrative work for one hour. He
contended that Dr. Tauber’s report established a permanent aggravation of his left knee
preexisting degenerative arthritis. Dr. Martinson did not note all of his work duties in her report.
She noted only occasional exertional weight bearing requirements but appellant’s weight bearing
activity occurred six or more hours a day during most of his career. Dr. Martinson’s report was
of diminished probative value because it was not based on an accurate understanding of his work
duties. Appellant contended that Dr. Martinson attributed the cause of his chronic knee pain to
his long history of morbid obesity but failed to consider whether his work activities aggravated
his left knee condition. He argued that Dr. Tauber’s February 3, 2009 report should carry the
weight of the medical opinion or create a conflict with the medical opinion of Dr. Martinson.
On April 8, 2009 the Office denied appellant’s request for a review of the written record
on the grounds that the request was not timely filed within 30 days on the January 7, 2009
decision. It exercised its discretion and determined that the issue could be equally well resolved
through a reconsideration request and the submission of new medical evidence.3
3

Appellant did not request Board review of the April 8, 2009 Office decision.

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On July 20, 2009 the Office affirmed the January 7, 2009 decision.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.4 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.5
Section 8123 of the Federal Employees’ Compensation Act 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.6
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Martinson provided a history of appellant’s federal duties. He began his federal
employment in 1989. In 2001 appellant was promoted to lieutenant and supervised the entire
prison. He made daily rounds to check on guards and inmates. Appellant walked several miles a
day and climbed several flights of stairs. In emergency situations such as inmate violence, he
had to run variable distances. Dr. Martinson opined that appellant’s job duties as a corrections
officer did not cause his left knee condition. He opined that appellant’s previous morbid obesity,
prior to his gastric bypass surgery, was the cause of his knee condition.
As the Office did not prepare a comprehensive statement of accepted facts,
Dr. Martinson’s opinion on causal relationship is not based on a complete and accurate factual
background. Her description of appellant’s job duties does not include many of the duties and
physical requirements contained in the June 4, 2008 hearing transcript and in the hearing
representative’s September 17, 2008 decision. Because Dr. Martinson’s report is not based on a
4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
6

5 U.S.C. § 8123.

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complete and accurate factual background, her opinion on causal relationship is of diminished
probative value.
Dr. Tauber, appellant’s treating physician offered an opinion that appellant’s running and
climbing in pursuit of individuals, with the pivoting and twisting required, aggravated appellant’s
left knee condition. His report, like Dr. Martinson’s, however is of reduced probative value
because the Office has not prepared the comprehensive statement of accepted facts, as instructed
by the Office hearing representative. A conflict in medical opinion evidence thus exists
regarding the cause of appellant’s left knee condition, but this conflict can only be resolved
following preparation of a new statement of accepted facts.
The Board finds that the case must be remanded for the Office to prepare a detailed and
comprehensive SOAF incorporating findings of fact regarding appellant’s work duties for the
different positions he held during his tenure at the employing establishment from 1989 to 2007.
As required by Office procedures, the claims examiner should divide the statement of accepted
facts into parts, identifying both work-related and nonwork-related elements labeled as follows:
(1) Accepted events that are factors of employment; (2) Accepted events that are not factors of
employment; (3) Incidents alleged which the Office finds did not occur.7 Such findings are
necessary because they provide a proper frame of reference for the physician offering an opinion
on causal relationship.8 On remand the Office should review appellant’s written statements
regarding his job duties, the transcript of the June 4, 2008 hearing and statements from the
employing establishment and witnesses. It should prepare a thorough SOAF consistent with its
procedure manual. Given the complexity of appellant’s medical condition, other elements which
should be included in the statement of accepted facts are appellant’s prior medical history,
medical treatment received, concurrent medical conditions and history of prior work injuries.9
The Office should refer appellant, together with the new SOAF and medical evidence of record,
for an impartial medical examination and a rationalized opinion on whether his left knee
condition is causally related to factors of his federal employment. After such further
development as the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should prepare a new SOAF and refer appellant for an impartial medical examination. After
such further development as it deems necessary, it should issue an appropriate decision on his
claim for a left knee condition.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.6
(September 2009).
8
9

See Abe E. Scott, 45 ECAB 164 (1993); Donald E. Ewals, 51 ECAB 428 (2000).
Supra note 7 at 2.809.6(a).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 20, 2009 is set aside and the case is remanded for action
consistent with this decision.
Issued: September 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.ELORES BELLOWS, Appellant
and
U. S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket Nos. 20-1393 &
22-0390
Issued: February 3, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 7, 2020 appellant filed a timely appeal from a May 4, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP) under OWCP File No. xxxxxx146. The
Clerk of the Appellate Boards docketed the appeal as No. 20-1393. Also on July 7, 2020 appellant
filed a timely appeal from an April 9, 2020 merit decision of the OWCP under OWCP File No.
xxxxxx791. The Clerk of the Appellate Boards docketed the appeal as No. 22 -0390.
On September 18, 2018 appellant, then a 60-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on September 11, 2018 she sustained multiple injuries while in
the performance of duty. In a second Form CA-1 dated September 30, 2018, she explained that
she was struck by a postal box and fell to the floor on her right side, causing low back, bilateral
hip, and lower extremity pain. OWCP assigned that claim OWCP File No. xxxxxx146. By
decision dated November 9, 2018 OWCP accepted the claim in OWCP File No. xxxxxx146 for
sprain of ligaments of lumbar spine, sprain of other parts of lumbar spine and pelvis, right hip
sprain, left hip strain, lumbar radiculopathy, contusion of lower back and pelvis, and displaced
fracture of distal phalanx of the right great toe. Appellant submitted periodic medical reports and
physical therapy treatment notes through October 31, 2019.
On June 10, 2019 appellant filed another CA-1 alleging that on May 27, 2019 she sustained
bilateral knee conditions when she tripped over a hook and fell on both knees and her right arm

while in the performance of duty. OWCP assigned that claim OWCP File No. xxxxxx791. By
decision dated July 16, 2019 OWCP accepted the claim in OWCP File No. xxxxxx791 for bilateral
knee sprain and tear of the medial meniscus of the left knee.
On December 15, 2019 appellant filed claims for compensation (Form CA-7) in OWCP
File No. xxxxxx146 claiming disability from work for the periods November 23 through 28, 2019,
and November 30 through December 5, 2019. In support of her claims, she provided reports dated
from November 25 through December 10, 2019 by Dr. Ronnie D. Shade, a Board-certified
orthopedic surgeon, noting a May 27, 2019 employment injury where appellant’s left leg gave
way, causing her to fall. Dr. Shade diagnosed a lumbar ligamentous sprain, sprain of pelvis and
coccyx, bilateral hip sprains, lumbosacral radiculopathy, contusions o f the pelvis, coccyx, and
lumbar region, fracture of the distal proximal phalanx of the right great toe, and mild compression
fractures of L1 and L4. He held appellant off work from November 25, 2019 through
January 8, 2020.
In a letter dated December 23, 2019, OWCP advised appellant that it could not pay wageloss compensation for the claimed period under OWCP File No. xxxxxx146, as she had been paid
wage-loss compensation for the same period under another case, OWCP File No. xxxxxx791.
Therefore, the CA-7 forms submitted under OWCP File No. xxxxxx146 “will be coded as nonpayable as this would be considered dual compensation.”
Appellant subsequently filed CA-7 forms in OWCP File No. xxxxxx146 for disability from
work for the period December 7, 2019 through February 28, 2020. She provided additional reports
by Dr. Shade holding her off work from January 9 through March 16, 2020 due to difficulty with
prolonged standing, walking, sitting, bending, squatting, and kneeling.
In a development letter dated February 27, 2020 in OWCP File No. xxxxxx146, OWCP
requested additional medical evidence to support her claims for wage -loss compensation,
commencing November 23, 2019. OWCP indicated that it received notification that appellant
returned to work full duty “on another case” on November 5, 2019 due to a knee injury and stopped
working on November 19, 2019. It afforded her 30 days to submit the necessary evidence. In
response, appellant provided a March 3, 2020 report by Dr. Shade explaining that he erred by
inadvertently releasing her to work on November 5, 2019. Dr. Shade opined that appellant
remained disabled from work because of her lumbar, pelvis, and bilateral hip symptoms.
By decision dated March 6, 2020 in OWCP File No. xxxxxx791, OWCP issued a
preliminary overpayment determination finding that appellant was overpaid wage-loss benefits for
the period November 5, 2019 through February 1, 2020 in the amount of $8,704.82. OWCP
further found that appellant returned to part-time work for on November 5, 2019, and that she
concurrently received wages from the employing establishment and FECA wage -loss
compensation through February 1, 2020. OWCP finalized the overpayment determination on
April 9, 2020.
By decision dated May 4, 2020 in OWCP File No. xxxxxx146, OWCP denied appellant’s
claims for disability from work commencing November 23, 2019 as “payment of compensation
for the disability claimed cannot be authorized because you were previously compensated on

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another case for time loss during the same period claimed.” It further found that the medical
evidence of record failed to support disability for work for the claimed period.
The Board finds that this case is not in posture for decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between case files.1 For example,
if a new injury is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 2
As the claims in OWCP File Nos. xxxxxx146 and xxxxxx791 both involve the lower
extremities, and as OWCP’s decisions regarding the claimed periods of disability in OWCP File
No. xxxxxx146 and the overpayment in OWCP File No. xxxxxx791 require a review of both claim
files for full and fair adjudication, OWCP should have administratively combined these claims
prior to issuing the April 9 and May 4, 2020 decisions.3
Accordingly, the Board will remand the case to OWCP to administratively combine OWCP
File Nos. xxxxxx146 and xxxxxx791. Following this and other such further development as
deemed necessary, OWCP shall issue de novo decisions relative to disability and overpayment.

1

F.J., Docket No. 19-1918 (issued November 30, 2020); R.R., Docket No. 19-0368 (issued November 26, 2019);
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8c
(February 2000).
2

Id.

3

See L.R., Docket No. 20-0340 (issued April 16, 2021) (OWCP should have administratively combined the claims
prior to finding an overpayment of compensation where the correct payment of compensation benefits required a
review of both claims).

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IT IS HEREBY ORDERED THAT the April 9 and May 4, 2020 decisions of the Office
of Workers’ Compensation Programs in OWCP File Nos. xxxxxx791 and xxxxxx146,
respectively, are set aside and the cases are remanded for further proceedings consistent with this
order of the Board.
Issued: February 3, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oak Harbor, WA, Employer
__________________________________________

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

Docket No. 15-106
Issued: March 19, 2015

Case Submitted on the Record

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

JURISDICTION
On October 20, 2014 appellant filed a timely appeal from an October 8, 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 claim.
ISSUE
The issue is whether appellant has established an emotional condition in the performance
of duty.
FACTUAL HISTORY
On October 31, 2013 appellant, then a 54-year-old city letter carrier, filed a traumatic
injury claim alleging an emotional condition as a result of her employment. She alleged that on
1

5 U.S.C. § 8101 et seq.

October 21, 2013 she sustained mental illness and extreme depression knowing that she had to
go to work and report to her supervisor, a facility senior manager. Appellant stopped work that
day.2
In a November 13, 2013 letter, OWCP requested additional factual and medical evidence
in support of her claim. It noted that the evidence was insufficient to establish the employment
factor alleged to have caused injury and there was no medical evidence containing a diagnosis by
a physician detailing how her employment activities caused, contributed to, or aggravated any
diagnosed condition. Appellant was provided 30 days to submit the requested information.
In an undated statement received on December 13, 2013, appellant referenced a
workplace incident report concerning a May 12, 2012 incident. She stated that while she was not
pleased with the contents of the workplace incident report, at that time she believed that her
supervisor, the manager who prepared the report, would not be at the employing establishment
much longer. However, in January 2013, this particular individual was assigned to appellant’s
office as a supervisor, which meant she would have daily contact with him. Appellant stated that
the fact that her supervisor had stated that she was in need of mental assistance should be enough
proof to establish her disability.
The workplace incident report, authored by the supervisor, summarized that on May 12,
2012 appellant acted inappropriately towards another supervisor in placing her finger towards his
face and stating that she was going to call the inspection service regarding him because he was
crazy. The report noted that appellant had a long history of causing confrontation with her peers
and was seen by many as imposing and in serious need of mental assistance. The report further
noted that appellant’s behavior could definitely have the potential for further escalation and that
the employees had been concerned that appellant might do something damaging to their vehicles,
as she had done in the past.
In a supplemental statement explaining her claim, appellant alleged the work
environment and some individuals made it difficult for her to do her job. She described incidents
involving her supervisor and incidents involving other coworkers.
Appellant described a number of undated interactions with her supervisor, as well as
letters of warning received on September 20, 2013 and an October 1, 2013 interaction.
Regarding interactions with her supervisor, she stated that she parked in front of the employing
establishment because, when she parked in the employing establishment parking lot, individuals
parked so close to her vehicle that she could barely get in. Appellant’s supervisor informed her
that she needed to park in the parking lot, but the postmaster disagreed with him. Appellant
stated that her hamper was switched out to a dirty hamper, but when she informed her supervisor
he stated “Why would anyone do that?” In describing a third incident, appellant alleged that,
after she pushed a coworker’s cart, her supervisor immediately called them into the office.
When he found out that the coworker had pushed her cart first and not only that day but the day
before, he informed them that there would be no pushing of the carts, no matter who started it.
2

OWCP processed appellant’s claim as an occupational disease injury as her disability occurred over more than
one work shift.

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Appellant alleged that her supervisor made sure he interacted with her on a daily basis even
though her doctor recommended little to no interaction. She alleged that she was the only
employee to whom her supervisor gave instructions. Appellant stated that, when she was
instructed to do collections, she informed her supervisor that her back hurt, but he would not
make special accommodations for her. She stated that she had not filed any grievance, but her
shop steward Brian Wiggins, told her that he felt that her supervisor was out to get her.
Appellant filed an Equal Employment Opportunity (EEO) complaint last year and alleged that
her supervisor was hoping to get her fired. She stated that she should be able to come in and do
her job and leave as she has an assigned route and has worked there for 20 years.
Appellant also described disciplinary actions taken against her which she viewed as
harassment. On September 10, 2013 she received three letters of warnings: two for not doing
anything above and beyond her own assigned route and one was for saying the “F” word.
Appellant explained in 20 years, she had never cussed, but on the day in question another clerk,
had interrupted her twice when she was talking to a customer on the telephone.
Appellant stated that her supervisor always criticized her, that if she hummed to music
when wearing headphones, he told her not to hum. On October 1, 2013 she was singing outside
while walking to her case and he informed her that she should not sing.
Appellant also alleged several incidents with coworkers which she viewed as harassment.
She described a March 2, 2013 incident during which she asked a coworker to stop casing so she
could have another coworker pull down City 7, which had just been assigned to her. This
coworker told appellant it was none of her business, not to talk to him, and if there was a
problem to talk to her supervisor.
Appellant reported that the tray in her truck had broken but, it took over a week to get it
repaired. She stated on another occasion she had ridden up on her right front tire while loading
her truck and a coworker had informed another individual that appellant drove too fast.
Appellant stated that one of her siblings died on June 12, 2013 and she took leave. When
she returned, she heard that a coworker was telling others that she was upset because she was not
going to get leave in July, which was not true as she had already had her bid on that leave.
Appellant indicated that on September 27, 2013 someone had left empty tubs in her truck
and a coworker indicated that he had used her truck. She stated that on almost a daily basis,
someone put empty tubs behind her truck and moved her time card. Appellant informed the
postmaster, on one occasion, to call #911 because she suffered from a mental illness. She stated
that another coworker told her that she was being disruptive. Appellant alleged that her
emotional reaction to her coworkers’ harassment should be within the performance of duty as the
evidence established that her supervisor failed to intervene when she was harassed by coworkers
or the coworkers instigated such harassment.
Copies of three September 10, 2013 letter of warning notices were provided. The first
letter of warning concerned the June 27, 2013 altercation with the coworker when appellant used
profanity and told her to “Shut the F---k up.” The second letter of warning charged that on
July 30, 2013 appellant was assigned collections in addition to her regular route; however, she

3

deviated without authorization for 15 miles and took an additional 1.43 hours to complete her
route. The third letter of warning stated that on August 6, 2013 appellant was assigned
collections in addition to her regular route, but she failed to complete the assigned collections.
Appellant submitted a November 4, 2013 duty status report along with a November 4,
2013 report from Dr. Judye A. Scheidt, an osteopath and family physician. The report noted
appellant’s conflicts with her supervisor and diagnosed situational anxiety-stress; generalized
anxiety disorder, and depression. In notes dated April 29, August 5 and December 6, 2013,
Lauren Bock, a certified physician assistant, noted that appellant was either disabled from work
or provided restrictions on appellant’s full-time work. She recommended minimal interaction
with her supervisor.
In an August 12, 2013 report, Dr. Scheidt advised that appellant could only work eight
hours a day until her EEO claim was completed. She recommended that appellant have minimal
contact with her supervisor until the EEO claim was resolved.
In a December 5, 2013 report, Dr. Gloria M. Harrison, a licensed clinical psychologist,
noted that she saw appellant for three sessions, November 19, 27 and December 3, 2013, and she
presented in a highly emotional dysregulated state, exhibiting symptoms of anxiety and
depression which appellant directly attributed to a hostile work environment. Appellant had
tearfully described her experience over the past few months where she felt bullied, singled out,
and misunderstood by the events relating to her job. A diagnosis of adjustment disorder with
mixed anxiety and depressed mood, with a history of major depression and work-related stress,
financial stress, and physical health stress was provided.
In a December 12, 2013 statement, appellant’s supervisor stated that appellant had not
been treated any differently from any other employees, either by him or any other members of
management. Rather, he noted that she had demonstrated an unwillingness to take regular
instructions from her immediate supervisor and all previous supervisors. Appellant’s supervisor
noted that for a number of months, appellant has been excluded from performing mandatory
overtime as she provided medical documentation limiting her work to eight hours. He stated that
she had a guarantee of eight hours of work per day and when she finished her assignment early,
she routinely had been given the option of either taking leave for the remainder of the day or to
provide additional assistance within her restrictions. Appellant’s supervisor noted that appellant
would complete her route and often ask for additional workload in the form of collections or
additional portions of another route to fill the remainder of her day. He indicated that there was
a point in time when she decided she would only carry her route and nothing additional and
management accommodated this request, on a day-to-day basis, depending on the needs of the
service for that given day. When this request was granted to allow appellant not to carry
additional workload, she would be done early which placed her in a position to use her leave.
Appellant then simply took longer to complete her route.
Appellant’s supervisor advised that appellant had a history of inability to work well with
others. He noted that she provided constant distraction for the other employees in the form of
loud humming, singing, foot tapping, and loud outbursts and became combative and unable to
follow instructions when management addressed these issues with her. Appellant then provided
medical documentation stating that she was unable to fulfill certain expectations of her job due to

4

medical conditions. Appellant’s supervisor noted that this had been ongoing since 1995.
Duplicate copies of the May 12, 2012 incident and the three September 10, 2013 letter of
warning notices were provided.
Appellant subsequently filed claims for ongoing wage-loss compensation commencing
January 29, 2014. A work excuse dated March 31, 2013 was also submitted.
By decision dated April 30, 2014, OWCP denied appellant’s claim finding no
compensable employment factors.
Appellant continued to file claims for wage-loss compensation. Of record were May 27,
2014 work restrictions from Ms. Bock; a May 22, 2014 medical record from Dr. Harrison, a
certification of Health Care Provider for Employee’s Serious Health Condition completed by
Ms. Bock and a June 2, 2014 letter by Ms. Bock addressing recommended work restrictions.
On September 4, 2014 OWCP received appellant’s request for reconsideration.
Appellant asserted that her depression was triggered by work-related issues. She referenced
various Board decisions and legal precedents and stated that they applied to her. Appellant
alleged that the employing establishment acted abusively in issuing three letters of warning. She
stated that she was threatened by a coworker while answering the telephone. Appellant stated
that her supervisor advised her that she was in need of mental assistance and was a danger to
herself and others. She summarized her previous allegations, regarding her interactions with
coworkers. Appellant concluded that she would not submit witness statements and that her EEO
case had been settled.
By decision dated October 8, 2014, OWCP denied modification of the April 30, 2014
decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.5 There are situations where an injury or
3

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

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

5

illness has some connection with the employment but nevertheless does not come within
coverage under FECA.6 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from an emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of the work.7 On the other hand, the disability is not
covered where it results from such factors as an employee’s fear of a reduction-in-force or his or
her frustration from not being permitted to work in a particular environment or to hold a
particular position.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.9 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.10
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.11
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.12
With regard to emotional claims arising under FECA, the term harassment as applied by the
Board is not the equivalent of harassment as defined or implemented by other agencies, such as
the EEOC, which is charged with statutory authority to investigate and evaluate such matters in
the workplace. Rather, in evaluating claims for workers’ compensation under FECA, the term
harassment is synonymous, as generally defined, with a persistent disturbance, torment or

6

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

7

Supra note 4.

8

Kim Nguyen, 53 ECAB 127 (2001).

9

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
10

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

11

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

12

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

6

persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and feelings of
harassment will not support an award of compensation.13
In emotional condition claims, 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. 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.14
ANALYSIS
In the instant case, OWCP properly developed this claim as an occupational disease claim
as appellant alleged her emotional condition was the result of several incidents rather than
occurring during one workday or work shift.15 It denied her claim as she failed to establish an
injury as defined under FECA. The Board must, therefore, review whether appellant established
any compensable employment factors.
Appellant has not attributed her emotional condition to the performance of her regular
work duties or to any special work requirement arising from her employment under Cutler.16
Rather, she alleged that her supervisor stated that she was in need of mental assistance and was a
danger to herself and others and that this comment, along with actions of her supervisor and her
coworkers, created a hostile work environment. This general allegation pertains to an
administrative matter. The standard under McEuen is whether the evidence of record establishes
error or abuse by appellant’s supervisor.17
At the onset, it is noted that any disabling conditions resulting from appellant’s desire to
work in a different environment, away from her supervisor and coworkers, does not constitute a
personal injury sustained while in the performance of duty within the meaning of FECA.18

13

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

14

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

15

A traumatic injury means a condition caused by an incident or incidents occurring within a single workday or
work shift; occupational disease or illness is a condition produced by the work environment over a period longer
than a single workday. See 20 C.F.R. § 10.5(q) and (ee), respectively.
16

Supra note 4.

17

See Thomas D. McEuen, supra note 9.

18

See supra note 9.

7

Regarding the investigation conducted by appellant’s supervisor about the May 12, 2012
incident, wherein appellant placed her finger towards another supervisor’s face and stated that
she was going to call the inspection service because he was crazy, it is well established that
investigations into possible employee wrongdoing pertain to actions taken in an administrative
capacity of the employer and do not relate to the regular or specially assigned duties of the
employee.19 The Board finds that the record is devoid of any evidence establishing that the
administrative action of appellant’s supervisor in investigating and preparing an incident report
on May 12, 2012 regarding appellant’s actions was in error. Therefore this report is not
considered a factor of employment compensable under FECA.
Appellant described several incidents in which she believed her supervisor treated her
disrespectfully. These pertain to her supervisor’s comments and/or actions regarding her parking
in front of the gate, the switching of her hamper, cart pushing with a coworker, and her
humming/singing. The record confirms that appellant’s supervisor informed appellant to park in
the parking lot and that both appellant and the coworker were counseled about the cart pushing.
Generally, complaints about the manner in which a supervisor performs his or her duties or the
manner in which a supervisor exercises his or her discretion fall, as a rule, outside the scope of
coverage provided by FECA. This principle recognizes that a supervisor or manager in general
must be allowed to perform his or her duties and employees will, at times, dislike the actions
taken. Mere disagreement or dislike of a supervisory or managerial action will not be
compensable, absent evidence of error or abuse.20 As the record contains no evidence that her
supervisor or any employing establishment supervisor or manager committed error or abuse in
discharging management duties, this allegation is not compensable.21 As appellant failed to
provide any corroborating evidence, such as witness statements, to support her allegations
pertaining to the switching of her hamper and her humming/singing, she failed to support a
factual basis for that aspect of her claim.
Appellant alleged that she was the only one to whom her supervisor gave instructions and
argued that he did not make special accommodations for her when she was instructed to do
collections. She indicated that she had not filed a grievance, but her shop steward told her that
he felt he was out to get her and that the letters of warning were not valid. In his December 12,
2013 statement, appellant’s supervisor explained that appellant has a guarantee of eight hours of
work per day and when she finishes her assignment early, she was either given the option of
taking leave for the remainder of the day or to carry additional assistance within her restriction’s
to fill the remainder of her day. This, however, is dependent on the employing establishment’s
needs and is done on a day-by-day basis. On September 10, 2013 appellant received two letters
of warning for unsatisfactory work performance. Although the handling of disciplinary actions
is generally related to employment, they are administrative functions of the employing
establishment and not duties of the employee.22 The fact that letters of warning were issued to
19

See P.J., Docket No. 11-200 (issued September 6, 2011).

20

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

21

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

22

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

8

appellant regarding unsatisfactory work performance, does not indicate that she was singled out
or that her supervisor was out to get her. The letters of warning, by themselves, does not
establish error or abuse on the part of the supervisor in this administrative matter. Additionally,
in the absence of any witness statement, any comments attributed to other employees cannot be
substantiated.
Regarding appellant’s general contention that she was subjected to harassment,
particularly by her supervisor and her coworkers, mere perceptions of harassment or
discrimination are not compensable under FECA,23 and unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. A claimant must establish a factual basis for his or her allegations with probative and
reliable evidence.24 As noted above, appellant was issued a letter of warning for saying the “F”
word but there is no evidence that the coworker had threatened appellant as alleged. She alleged
that almost on a daily basis someone put empty tubs behind her truck and moved her time card,
and that her coworker’s harassed her by telling her to talk to her supervisor if there was a
problem. However, appellant has not substantiated any of her allegations with probative and
reliable evidence. She submitted nothing to show a persistent disturbance, torment or
persecution, i.e., mistreatment by either employing establishment management or her
coworkers.25 Appellant therefore did not establish a factual basis for her claim of harassment by
probative and reliable evidence.26
Finally, as appellant failed to establish a compensable employment factor, the Board need
not address the medical evidence of record.27
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.

23

Supra note 12.

24

Id.

25

Supra note 13.

26

See Robert Breeden, 57 ECAB 622 (2006).

27

Katherine A. Berg, 54 ECAB 262 (2002).

9

CONCLUSION
The Board finds that appellant has failed to establish that she sustained an emotional
condition in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


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

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

Docket No. 11-328
Issued: November 15, 2011

Case Submitted on the Record

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

JURISDICTION
On November 23, 2010 appellant timely appealed an October 8, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding his claim for a maintenance
allowance.1 Pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s claim for a
maintenance allowance during the period August 28, 1997 to October 6, 1998.

1

The Board notes that appellant has not appealed either the October 25, 2010 OWCP decision suspending
benefits effective October 26, 2010, or the October 21, 2010 OWCP decision regarding his pay rate.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 21, 1995 appellant, then a 30-year-old distribution clerk, filed an
occupational disease claim for events which occurred on August 29, 1995. He was working a
detail in a supervisory position in distribution operations when two postal workers were shot on
the premises. Appellant witnessed one of victims being pistol-whipped by the gunman whom he
confronted and escorted out of the building. OWCP accepted the condition of post-traumatic
stress disorder.3 Following the August 29, 1995 incident, appellant returned to work on a parttime basis for approximately three days a week in the temporary supervisory position. On
February 9, 1996 he returned to his distribution clerk duties. Appellant stopped work on
April 29, 1996.4 OWCP placed him on the period compensation rolls.
OWCP referred appellant to vocational rehabilitation. A vocational training program was
approved beginning June 27, 1997 for him to attend courses at Harold Washington College to
obtain an accounting degree. In a form letter OWCP-23, OWCP advised appellant that a
maintenance allowance would be paid every four weeks, provided a minimum of average
progress and attendance was maintained. On May 22, 1997 appellant and the rehabilitation
counselor requested transportation expense for $76.16 per week to take the bus and train to
school.
On August 1, 1997 OWCP approved a rehabilitation plan and award, which included a
set amount for reimbursement for books and supplies. In an August 1, 1997 letter, it informed
appellant that he would receive $9.23 a day in additional compensation for maintenance while
participating in the rehabilitation program. OWCP noted that his program at Harold Washington
College would start June 27, 1997 and end on March 27, 1998. Appellant was informed that he
could request a maintenance allowance for extra expenses and was advised about making such a
claim.
The record reflects that appellant was actively enrolled in classes from August 27, 1997
through October 6, 1998, when he dropped out of school. The record also reflects that OWCP
paid for all necessary expenses, such as books and supplies.
In an October 15, 2008 letter, appellant stated that he did not receive additional
compensation while he was in the vocational training program commencing June 1997 and
requested that such compensation be processed. On May 28, 2009 OWCP advised appellant’s
representative that its records showed that it had paid appropriate compensation, including
payment of bills and fees for which records were submitted. In an October 14, 2009 letter, it
reiterated to appellant that its records showed that compensation had been paid beginning
June 27, 1997, while he was in vocational rehabilitation, for bills, fees and reimbursements for
which records from appellant were submitted. In an undated letter, appellant disagreed with
3

Appellant has concurrent conditions of migraine headaches under case number xxxxx350 and insomnia of a
closed case.
4

Appellant last worked for the employing establishment April 20, 1996. The record reflects appellant worked
part time at Marshall Fields during the period October 13 through December 18, 1996. No other gainful
employment is reported.

2

OWCP’s October 14, 2009 letter. He did not specify any particular expenses that had not been
paid. In a June 26, 2010 and subsequent letters, appellant again requested a subsistence
allowance for when he underwent vocational rehabilitation.5
In an October 8, 2010 decision, OWCP found that all maintenance allowance payments
were paid for appellant’s participation in the vocational rehabilitation training program from
August 286 through October 6, 1998.7 It noted that his rehabilitation program was terminated
due to noncompliance on October 6, 1998 when he dropped out school. When appellant dropped
out of school, he was no longer eligible for any maintenance allowance.
LEGAL PRECEDENT
Section 8111(b) of FECA provides that “the Secretary may pay an individual undergoing
vocational rehabilitation under section 8104 of this title additional compensation necessary for
maintenance, but not to exceed $200.00 a month.”8
The Board has held that the purpose of section 8111(b) is not to supplement the income
of an employee undergoing vocational training where he is already receiving the full amount of
disability compensation authorized by FECA and all the costs of his training program are being
paid by OWCP. With respect to such an employee, the section was intended to cover only such
expenses incidental to his training as transportation to and from class, parking, lunch, etc.9
The Board has held that the only limitation on OWCP’s authority is reasonableness and
an 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.10
ANALYSIS
In this case, OWCP authorized appellant to receive a maintenance allowance during his
participation in the vocational rehabilitation training program at Harold Washington College
from June 27, 1997 to March 27, 1998. Appellant participated in the program from August 27,
5

In a July 23, 2010 decision, OWCP denied the claimed subsistence allowance during the period June 27, 1997
through April 2001 citing to a regulatory provision regarding the time limit for submitting medical bills. On July 30,
2010 it rescinded the July 23, 2010 decision and noted that a new decision would be issued.
6

This is a typographical error as the record reflects appellant was actively enrolled in classes from
August 27, 1997.
7

This case was previously before the Board. By decision dated February 9, 1999, the Board affirmed a July 29,
1997 OWCP decision that found appellant had abandoned his request for a hearing. Docket No. 98-397 (issued
February 9, 1999).
8

5 U.S.C. § 8111(b).

9

See Denis F. Rafferty, 27 ECAB 524 (1976); see Charles Rivers, 21 ECAB 258 (1970); Victor R. Thurman,
Docket No. 96-1219 (issued November 13, 1998).
10

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

3

1997 through October 6, 1998, when he dropped out and stopped taking classes at Harold
Washington College. Appellant subsequently claimed he did not receive payment of a
maintenance allowance while he was in vocational rehabilitation training. OWCP denied his
claim.
The evidence of record does not establish that OWCP abused its discretion in its denial of
appellant’s claim for payment of a maintenance allowance from August 27, 1997 through
October 6, 1998. As noted, appellant participated in the vocational rehabilitation training
program during this period. OWCP paid for requested expenses, such as books and supplies, and
approved an additional $9.23 per day in transportation expenses. Additionally, appellant
received supplemental income from OWCP during the stated period. In its August 1, 1997 letter,
OWCP informed appellant that he could request extra expenses and advised him how to make
such a claim. Appellant, however, made no further claim until 2009. He generally alleged that
he was not paid a maintenance allowance but did not identify any particular expenses that were
not paid. Appellant has not identified any specific eligible incidental expenses for which he was
not previously paid. In this case, the evidence of record does not indicate that OWCP abused its
discretion in its denial of his request for payment of a maintenance allowance during the period
August 27, 1997 to October 6, 1998.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s claim for
payment of a maintenance allowance during the period August 27, 1997 through
October 6, 1998.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 8, 2010 is affirmed.
Issued: November 15, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 15-1778
Issued: August 16, 2016

Case Submitted on the Record

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

JURISDICTION
On August 25, 2015 appellant filed a timely appeal from a July 13, 2015 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 OWCP met its burden of proof to terminate appellant’s eligibility
for wage-loss and schedule award compensation effective June 17, 2014 as she refused an offer
of suitable work, pursuant to 5 U.S.C. § 8106(c).
On appeal, appellant contends that she had responded to OWCP’s May 14, 2014
suitability determination letter within the 30-day time period and submitted a certified mail
receipt dated June 10, 2014. She cites to Maggie L. Moore,2 and contends that OWCP failed to
1

5 U.S.C. § 8101 et seq.

2

42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

issue a 15-day notice allowing her another opportunity to accept the employing establishment’s
job offer. Appellant further contends that none of the medical evidence from her treating
physician, an attending Board-certified orthopedic surgeon, particularly his March 16, 2015
medical report, or reports from a vocational rehabilitation counselor was considered by OWCP.
FACTUAL HISTORY
On August 27, 2006 appellant, then a 53-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) under File No. xxxxxx833 alleging that on that day she hurt her left
shoulder and right knee when she tripped over a raised floor in an elevator.3 OWCP accepted the
claim for contusion of the right knee and lower leg, right lumbosacral joint sprain, left shoulder
and acromioclavicular (AC) sprain, right anterior cruciate ligament injury, strain and overuse
trochanteric tendinitis of the left hip, and overuse quadriceps tendinitis of the left leg.4
Appellant returned to part-time work, every other day, in a modified mail processing
clerk position effective March 29, 2007. In a July 16, 2008 decision, OWCP found that her
actual earnings as a modified mail processing clerk, effective March 29, 2007, fairly and
reasonably represented her wage-earning capacity with zero wage loss.
On June 5, 2010 OWCP accepted that appellant sustained a recurrence of disability from
June 5 through 18, 2010 as the employing establishment withdrew her modified-duty position
under the National Reassessment Process. It authorized total disability compensation beginning
on June 5, 2010. Appellant did not return to work and was placed on the periodic rolls.
In work capacity evaluations (Form OWCP-5c) and medical reports dated July 18, 2012
to August 14, 2013, Dr. John R. Kearns, an attending Board-certified orthopedic surgeon,
advised that appellant was not able to perform her usual job, but she could perform light-duty
work four hours a day as tolerated with permanent restrictions due to her low back, left shoulder,
and right knee injuries, five days a week. The restrictions included sitting up to four hours a day
as tolerated, standing and walking for short intervals, sitting with the freedom to move around,
occasional reaching, repetitive wrist and elbow movements, pushing and lifting up to 10 pounds,
no reaching above shoulder, twisting, or repetitive activities using the back, neck, and upper
extremities, rare bending and stooping, and pulling up to 10 pounds. Appellant was also required
to use a chair with back support.

3

In a prior appeal before the Board with respect to appellant’s claim under File No. xxxxxx641, the Board, in a
January 3, 2008 decision, affirmed a March 30, 2007 OWCP decision which terminated her compensation benefits
effective November 30, 2005 as she no longer had any residuals or disability causally related to her accepted
May 22, 1997 lumbosacral strain. Docket No. 07-1795 (issued January 3, 2008). In an order dated August 5, 2008,
the Board denied appellant’s petition for reconsideration of its January 3, 2008 decision. Order Denying Petition for
Reconsideration, Docket No. 07-1795 (issued August 5, 2008).
4

By decision dated June 4, 2008, OWCP granted appellant a schedule award for 10 percent impairment of the
right lower extremity and 7 percent impairment of the left upper extremity. The decision was affirmed on
October 14, 2008 by an OWCP hearing representative. In a January 30, 2009 decision, OWCP granted appellant an
additional schedule award for 9 percent impairment of the right lower extremity, for a total of 19 percent.

2

By letter dated October 4, 2012, OWCP requested that the employing establishment
provide appellant with a written offer for a position within the restrictions of Dr. Kearns within
30 days.
By letter dated January 14, 2013, the employing establishment informed OWCP that it
did not have any positions available within appellant’s restrictions. It recommended that she be
referred to vocational rehabilitation.
On August 2, 2013 OWCP referred appellant for vocational rehabilitation. On March 11,
2014 a vocational rehabilitation counselor performed vocational testing and a labor market
survey. In an April 24, 2014 report, she determined that appellant was unemployable in the open
labor market as a result of the assessment and medical restrictions. Appellant lacked a General
Education Diploma (GED) and transferrable skills, the labor market survey supported the
unavailability of jobs within her skill set and the medical record indicated a four-hour restriction
“as tolerated.” The rehabilitation counselor stated that a GED assessment put her at a seventh to
eighth grade level and it was unknown as to when she would reach an appropriate level leading
to actual testing for the GED or equivalent. She further stated that two target jobs were
identified that did not require a GED, but they required frequent to constant reaching and the
medical restrictions indicated only occasional reaching and four hours of work as tolerated. The
rehabilitation counselor recommended that OWCP follow up for continued medical management
and an ability to increase beyond four hours of work with concrete restrictions for the entire
work shift and not as tolerated.
On May 7, 2014 the employing establishment offered appellant a modified lobby
assistant position, four hours a day, five days a week, effective May 12, 2014 based on
Dr. Kearns’ work restrictions.5 The duties required verbally assisting postal customers,
answering mailing questions, providing instructions on holding mail, change of address, and
proper mailing, assisting customers with concerns and complaints, and answering the telephone
as needed for an average of four hours. The physical requirements included no lifting over five
pounds which only involved lifting minimal paperwork for an average of .25 hour, sitting up to
4 hours for an average of 3.50 hours and moving around as desired, intermittent standing and
walking in short intervals for an average of .50 hour, and talking to customers for an average of
4 hours. Appellant did not respond to the job offer.
By letter dated May 15, 2014, OWCP advised appellant that it had been informed that she
had refused or failed to report to the offered position. It further advised her of its determination
that the modified position offered by the employing establishment was suitable. OWCP
indicated that the position was based upon the physical restrictions set forth by Dr. Kearns. The
employing establishment confirmed that the position remained available to appellant. OWCP
instructed her that she must, within 30 days, either accept the position or provide a written
explanation of the reason she did not accept the position or she could lose her right to
compensation under 5 U.S.C. § 8106(c) of FECA.

5

The Board notes that it appears OWCP inadvertently misidentified the offered position as a modified mail
processing clerk as the employing establishment’s May 7, 2014 job offer indicated that appellant was offered a
modified lobby assistant position.

3

On May 20, 2014 OWCP received a May 14, 2014 note from Dr. Kearns documenting
that appellant was unable to work through June 14, 2014.
In a May 19, 2014 left knee magnetic resonance imaging (MRI) scan report,
Dr. Cooper R. Gundry, a Board-certified radiologist, found complex cleavage tearing of the
posterior one-third of the medial meniscus, grade 2 chondromalacia of the patellofemoral
compartment, small knee joint effusion, and prepatellar bursal inflammation. He also reported
that a lumbar MRI scan revealed moderate disc degeneration at L5-S1 and L4-5 and mild or
moderate at multiple levels at the thoracolumbar junction, advanced facet arthropathy bilaterally
at L5-S1 with two millimeter (mm) spondylolisthesis and mild at L4-5, a patent central canal and
mild foramina narrowing on the left at L5-S1 and L4-5, and no neural impingement, intradural
lesion, neoplasm, fracture, or infection.
In a letter dated June 9, 2014, received by OWCP on June 17, 2014 appellant set forth in
writing four issues she claimed precluded her from accepting the offered employment position.
In support of her assertions she included supporting documentation including a June 9, 2014
narrative note from Dr. Kearns along with a letter from her rehabilitation counselor and an MRI
scan report of her left knee, right knee, and lumbar spine.
By decision dated June 17, 2014, OWCP terminated appellant’s wage-loss and schedule
award compensation benefits effective that day because she refused an offer of suitable work
pursuant to 5 U.S.C. § 8106(c). It noted that she did not respond to its May 15, 2014 30-day
notice, nor did she accept the suitable work position and return to work within the allotted time
period. OWCP further noted that authorization for further medical treatment continued.
On June 26, 2014 appellant requested reconsideration. She submitted letters dated
June 9, July 2, and September 9, 2014, in which she responded to OWCP’s May 15, 2014
suitability determination letter. Appellant asserted that her condition had worsened and her
physician had opined that she could not work at that time. She submitted draft documents which
addressed the classification and duties of a lobby assistant position and the rehabilitation
counselor’s vocational closure report.
In reports dated May 14 to October 27, 2014, Dr. Kearns noted appellant’s work-related
injuries, continuing symptoms, and medical treatment. He provided examination findings and
diagnosed cleavage tearing of the posterior one-third of the medial meniscus and grade 2
chondromalacia of the patellofemoral compartment of the left knee, moderate disc degeneration
at L5-S1 and L4-5, and facet arthropathy L5-S1 with mild spondylolisthesis at L4-5. Dr. Kearns
noted the May 19, 2014 lumbar and left knee MRI scan results. He also noted that a prior right
knee MRI scan revealed findings consistent with an ACL injury. Dr. Kearns opined that
appellant was completely disabled for work.
In an appeal request form and a letter dated July 7, 2014, appellant withdrew her request
for reconsideration and instead requested a review of the written record by an OWCP hearing
representative.

4

In a January 22, 2015 decision, an OWCP hearing representative affirmed the June 17,
2014 decision. She found that the medical evidence submitted was insufficient to establish that
appellant was not capable of performing the offered position.
By letter dated March 24, 2015, appellant again requested reconsideration. In an April 2,
2015 letter, she contended that the offered position was not suitable because it was a customer
service job that required classroom and window training. Appellant did not have either training.
She submitted draft documents which addressed the classification and duties of a lobby assistant
position.
In a March 9, 2015 report, Dr. Kearns provided appellant’s symptoms and social and
medical history, and addressed her treatment plan. In a March 16, 2015 report, he noted the
accepted employment injuries and the physical requirements of her mail processing clerk
position. Dr. Kearns noted, however, that in recent years appellant’s symptoms had progressed
to the point, particularly involving the low back and knees, where she was unable to work, even
part time. Appellant was unable to use her arms for any length of time due to degenerative
issues in her back. She needed to rest, sitting, standing, walking, and laying down as needed to
help relieve her pain and discomfort. Dr. Kearns related that lying down provided the best relief
because pain was generally aggravated by movement and activity. He noted that the work
restrictions outlined in the May 2014 modified job offer were not accurate because appellant
could only work as tolerated and currently she was not able to tolerate any work. Appellant was
also on narcotic and nonnarcotic pain medications that made her drowsy. Dr. Kearns
recommended that she should not work or drive under the influence of these medications.
In a July 13, 2015 decision, OWCP denied modification of the January 22, 2015 decision.
It found that Dr. Kearns’ reports were insufficient to establish that appellant was unable to
perform the duties of the offered position.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by, or
secured for him or her is not entitled to compensation.6 Once OWCP accepts a claim, it has the
burden of justifying termination or modification of compensation benefits under section 8106(c)
for refusing to accept or neglecting to perform suitable work.7 The implementing regulations
provide that an employee who refuses or neglects to work after suitable work has been offered or
secured for the employee has the burden of showing that such refusal or failure to work was
reasonable or justified and shall be provided with the opportunity to make such a showing before
entitlement to compensation is terminated.8 The Board has recognized that section 8106(c)

6

5 U.S.C. § 8106(c)(2).

7

Joyce M. Doll, 53 ECAB 790 (2002); Howard Y. Miyashiro, 51 ECAB 253 (1999).

8

20 C.F.R. § 10.517(a).

5

serves as a penalty provision as it may bar an employee’s entitlement to future compensation
and, for this reason, will be narrowly construed.9
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of his or her refusal to accept such employment.10
In determining what constitutes suitable work for a particular disabled employee, it considers the
employee’s current physical limitations, whether the work was available within the employee’s
demonstrated commuting area and the employee’s qualifications to perform such work.11
OWCP procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer or medical evidence of inability to do the work or travel to the job.12
Section 10.516 of FECA’s implementing regulations provide that OWCP shall advise the
employee that it has found the offered work to be suitable and afford the employee 30 days to
accept the job or present any reasons to counter OWCP’s finding of suitability. If the employee
presents such reasons and OWCP determines that the reasons are unacceptable, it will notify the
employee of that determination and that he or she has 15 days in which to accept the offered
work without penalty. At that point in time, OWCP’s notification need not state the reasons for
finding that the employee’s reasons are not acceptable.13 After providing the 30-day and 15-day
notices, OWCP will terminate the employee’s entitlement to further wage-loss compensation and
schedule award benefits.14 However, the employee remains entitled to medical benefits.15
ANALYSIS
To justify termination of compensation, OWCP, must show that the work offered was
suitable.16 The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation under 5 U.S.C. § 8106(c)(2) as it failed to properly give consideration to all of the
evidence of record prior to its termination decision on July 17, 2014.17
OWCP accepted that appellant sustained a contusion of the right knee and lower leg,
sprain of the right lumbosacral joint, sprain of the left shoulder, upper arm, and an AC joint
9

See Joan F. Burke, 54 ECAB 406 (2003).

10

T.S., 59 ECAB 490 (2008); Linda Hilton, 52 ECAB 476 (2001); Ronald M. Jones, 52 ECAB 190 (2000);
Maggie L. Moore, supra note 2.
11

20 C.F.R. § 10.500(b).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Job Offer Refusal,
Chapter 2.814.5a (June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).
13

20 C.F.R. § 10.516.

14

Id. at § 10.517(b).

15

Id.

16

See cases cited supra note 10.

17

See E.Z., Docket No. 14-0247 (issued March 16, 2015).

6

injury, right anterior cruciate ligament, strain and overuse trochanteric tendinitis of the left hip,
and overuse quadriceps tendinitis of the left lower extremity while in the performance of duty on
August 27, 2006. It terminated her monetary compensation effective June 17, 2014 based on her
failure to accept suitable work.
Once OWCP accepts a claim, it has the burden of proving that the employee’s disability
has ceased or lessened before it may terminate or modify compensation benefits.18 Following its
suitability determination of the modified lobby assistant position, appellant was properly
afforded 30 days to either accept the offer of suitable work or provide reasons for rejecting the
offered position. In response, she submitted medical records and other documentation along
with a letter stating four issues precluding the offered position from being suitable.
Within these records, Dr. Kearns opines that appellant is completely disabled and unable
to return to work under any capacity at the time. He noted that a recent MRI scan of the
lumbosacral spine revealed moderate disc degeneration at L5-S1 and L4-5 along with advanced
fact arthropathy bilaterally with 2 mm spondylolisthesis. Dr. Kearns also noted that a recent
MRI scan of the left knee revealed findings consistent with complex cleavage tearing of the
posterior one-third of the medial meniscus as well as grade 2 chondromalacia of the left
patellofemoral compartment. Following appellant’s submission of the additional medical
evidence and her statement of her reasons for finding the offered position unsuitable, OWCP
failed to sufficiently discuss or analyze the new medical evidence, and her arguments in support
of her refusal of work. The June 17, 2014 decision erroneously finds that appellant did not
respond to OWCP’s 30-day notice. This finding is clearly erroneous as the June 9, 2014 letter
was received by OWCP on June 17, 2014 and was of evidence at the time of its termination
decision. As appellant submitted additional evidence within the 30-day period afforded by
OWCP of responding to the suitability determination, she was entitled to have this evidence
evaluated to determine whether or not she had provided acceptable reasons for refusing the offer
of suitable work.
The Board finds that OWCP failed to properly consider the evidence submitted by
appellant within the 30 days it afforded to her to contest the termination and therefore it
improperly terminated her eligibility for wage-loss and schedule award compensation effective
June 17, 2014 based upon a refusal of suitable work under 5 U.S.C. § 8106(c)(2).
Consequently, OWCP’s July 13, 2015 merit decision shall be reversed.
On appeal, appellant contends that she had responded to OWCP’s May 14, 2014
suitability determination letter within the 30-day time period and submitted a certified mail
receipt dated June 10, 2014.
Appellant further cites to Maggie L. Moore,19 and contends that OWCP failed to issue a
15-day notice allowing her another opportunity to accept the employing establishment’s job
offer.
18

Karen L. Majewski, 45 ECAB 219 (1993); Bettye F. Wade, 37 ECAB 556 (1986).

19

Supra note 2.

7

Lastly, appellant also contends that none of the medical evidence from Dr. Kearns,
particularly, his March 16, 2015 report, or reports from the vocational rehabilitation counselor
were considered by OWCP. For the reasons set forth in this decision, the Board has reversed the
June 17, 2014 termination decision.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
eligibility for wage-loss and schedule award compensation effective June 17, 2014, pursuant to 5
U.S.C. § 8106(c).
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 16, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8