United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Media, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1773
Issued: January 29, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 17, 2006 merit decision denying his claim for an employmentrelated left knee condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
knee injury in the performance of duty.
FACTUAL HISTORY
On November 14, 2005 appellant, then a 43-year-old letter carrier, filed an occupational
disease claim alleging that he sustained a left knee injury due to his work. Regarding the cause
of the injury, he stated, “November 8th and 9th I had a pain behind left knee while delivering but
thought it would go away. Thursday November 10, 2005 while delivering the pain progressed
throughout entire knee. Friday a.m. woke up with swelling.” Appellant stopped work on

November 10, 2005 but began performing light-duty work for the employing establishment
shortly thereafter.1
On November 15, 2005 appellant first visited Dr. William D. Emper, a Board-certified
orthopedic surgeon, who indicated that he reported developing acute pain and swelling of the left
knee after walking “one day” in the prior week. Examination of appellant’s left knee revealed
1+ effusion and positive medial joint line tenderness. Dr. Emper posited that appellant might
have a tear of the medial meniscus of the left knee and recommended that he limit his walking,
bending and squatting and undergo magnetic resonance imaging (MRI) scan testing.2 In a form
report dated November 17, 2005, he listed the history of injury as “onset of left knee pain after
walking route last week,” diagnosed torn medial meniscus of the left knee and determined that
appellant’s tear was caused by walking his route. Dr. Emper indicated that appellant was
partially disabled beginning November 15, 2005.3
In a December 2, 2005 note, Dr. Emper stated that appellant reported symptoms of a
large effusion and tender medial joint line of the left knee while walking his route on
November 10, 2005. He indicated that this caused his “expected” medial meniscus tear and
recommended MRI scan testing. In a December 20, 2005 note, Dr. Emper indicated that
appellant reported acute onset of left knee pain after walking his postal delivery route in early
November 2005. He indicated that this was considered to be a work-related injury.
By decision dated December 23, 2005, the Office denied appellant’s claim on the
grounds that he did not submit rationalized medical evidence showing that he sustained a left
knee injury due to the implicated employment factors.
On February 16, 2006 appellant underwent MRI scan testing of the left knee which
showed a suspected small vertical tear along the inner margin of the posterior horn of the medial
meniscus. This finding was seen on a single coronal image and therefore was considered
“somewhat equivocal.” In a March 2, 2006 note, Dr. Emper maintained that these findings
showed that appellant had a left medial meniscus tear which was work related.
Appellant began to receive treatment for his left knee condition from Ronald N.
Rosenfeld, an osteopath and Board-certified orthopedic surgeon. In several form reports and
notes dated beginning in February 2006, Dr. Rosenfeld listed the date of injury as October 10,
2005 and indicated that appellant’s left medial meniscus tear was due to the injury.
Appellant also submitted several documents regarding a right ankle injury he sustained
on November 9, 2005. In a form report dated November 9, 2005, an emergency room physician
at the Frankford Hospital indicated that appellant presented on November 9, 2005 indicating that
he “lost footing on step and fell into and also twisted his right ankle.” The physician, whose
1

Appellant’s claim bears the file number 03-2044442.

2

The record also contains a November 12, 2005 note in which a physician with an illegible signature from the
Marple Commons Medical Group provided the notation “arthritis left knee -- acute flare, limiting walking.”
3

A November 15, 2005 form report of Dr. Emper also provided work restrictions and indicated that appellant’s
medial meniscus tear was due to a November 10, 2005 injury.

2

signature is illegible, diagnosed right ankle sprain and contusion. A November 9, 2005
admission form indicates that appellant stated that he only felt a little “twinge” in his right ankle
and could walk on it. The Board notes that this condition falls under a separate Office claim file
number 03-2043999 and is not the subject of the present appeal.4
In a June 14, 2006 report, Dr. Emper stated that when he first saw appellant on
November 15, 2005 he reported that he developed pain and swelling in his left knee after
walking his route one week prior to the office visit. He indicated that he referred appellant for
MRI scan testing on February 16, 2006 which showed a tear of the posterior horn of the medial
meniscus. Dr. Emper stated:
“Although he did not state that he experienced a twisting type injury while
working his route his job occupation is very physical. He has to lift large hampers
of mail approximately 3 feet high, loaded with weight ranging from 50 [to] 150
pounds. He walks his route that usually takes about five hours per day. It is my
opinion that his meniscal tears can occur with activities such as this without the
patient experiencing a definitive twisting injury. Because of the extensive nature
of his physical activity and the fact that he had no prior history of discomfort in
his knee, it is my opinion that this meniscal tear is a work-related injury.”
Appellant requested an oral hearing before an Office hearing representative but later
requested that he receive a review of the written record. By decision dated and finalized July 17,
2006, the Office hearing representative affirmed the Office’s December 23, 2005 decision as
modified to reflect that appellant’s claim was denied on the basis that he had not established the
factual aspect of his claim. The Office hearing representative indicated that appellant’s apparent
failure to report the October 9, 2005 right ankle injury to the physicians treating his left knee
condition created a significant inconsistency.
LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act5 has
the burden of establishing the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.6 An injury does
not have to be confirmed by eyewitnesses in order to establish the fact that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.7 An
employee has not met his burden of proof of establishing the occurrence of an injury when there
are such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.8
4

Appellant did not stop work in connection with his right ankle condition.

5

5 U.S.C. §§ 8101-8193.

6

William Sircovitch, 38 ECAB 756, 761 (1987); John G. Schaberg, 30 ECAB 389, 393 (1979).

7

Charles B. Ward, 38 ECAB 667, 670-71 (1987); Joseph Albert Fournier, Jr., 35 ECAB 1175, 1179 (1984).

8

Tia L. Love, 40 ECAB 586, 590 (1989); Merton J. Sills, 39 ECAB 572, 575 (1988).

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Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury, and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.9 However, an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.10
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his claim including the fact that the individual is an employee of the United States
within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and specific condition for which compensation is claimed are causally
related to the employment injury.11 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.12
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.13 The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.14

9

Samuel J. Chiarella, 38 ECAB 363, 366 (1987); Henry W.B. Stanford, 36 ECAB 160, 165 (1984).

10

Robert A. Gregory, 40 ECAB 478, 483 (1989); Thelma S. Buffington, 34 ECAB 104, 109 (1982).

11

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

12

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

13

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

14

Id.

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ANALYSIS
Appellant alleged that he sustained a knee injury due to performing his mail carrier duties
on November 8, 9 and 10, 2005. The Office denied appellant’s claim on the grounds that there
were such inconsistencies in the factual evidence that he had not established the occurrence of
employment factors as alleged.
The Board finds that appellant has established the factual aspect of his claim in that he
has shown the existence of employment factors which he believed caused his left knee condition,
i.e., delivering mail on November 8, 9 and 10, 2005. He consistently asserted that he sustained
his left knee injury due to walking while delivering mail on November 8, 9 and 10, 2005.
Appellant indicated that his left knee pain became progressively worse over the course of these
days. He stopped work on November 10, 2005, first sought medical treatment for his left knee
condition on November 12, 2005, and filed his compensation claim on November 14, 2005. The
fact that appellant apparently failed to report a October 9, 2005 right ankle injury to the
physicians treating his left knee condition does not create a significant inconsistency in the
factual record. It appears from the record that the right ankle injury was minor and did not
require work stoppage. Appellant’s left knee symptoms began prior to his right ankle injury, and
it would be reasonable for appellant to conclude that the October 9, 2005 event did not contribute
to his left knee condition. An employee’s statement alleging that an injury occurred at a given
time and in a given manner is of great probative value and there is no strong or persuasive
evidence to refute appellant’s assertion that his left knee injury occurred due to walking while
delivering mail on November 8, 9 and 10, 2005.
The Board finds, however, that appellant did not establish his claim because he did not
submit sufficient medical evidence to show that he sustained a left knee injury due to the
accepted employment factors, i.e., walking while delivering mail on November 8, 9
and 10, 2005.15
In a June 14, 2006 report, Dr. Emper, an attending Board-certified orthopedic surgeon,
stated that when he first saw appellant on November 15, 2005 he reported that he developed pain
and swelling in his left knee after walking his route one week prior to the office visit. He
indicated that he referred appellant for MRI scan testing on February 16, 2006 which showed a
tear of the posterior horn of the medial meniscus. Dr. Emper discussed various duties of
appellant’s job and stated that the “extensive nature of his physical activity and the fact that he
had no prior history of discomfort in his knee” showed that his left medial meniscus tear was
work related.
This report, however, is of limited probative value on the relevant issue of the present
case in that Dr. Emper did not provide adequate medical rationale in support of his conclusion on
causal relationship.16 He did not clearly attribute appellant’s left knee problem to the specific
15

See supra note 13 and accompanying text.

16

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale).

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employment factors implicated by appellant, i.e., walking while delivering mail on November 8,
9 and 10, 2005. Dr. Emper appears to have related appellant’s left knee condition to events
which occurred over a much longer period of time and his recitation of appellant’s duties
includes actions (such as lifting large hampers of mail weighing up to 150 pounds) that appellant
has not implicated or established as factual.
Moreover, Dr. Emper has not provided a detailed description of the mechanism of the
claimed injury. The basis for Dr. Emper’s diagnosis of left medial meniscus tear is not entirely
clear. The MRI scan testing of February 16, 2006 only showed a suspected left medial meniscus
tear. Dr. Emper previously suggested that he obtained MRI scan testing in mid November 2006
but the record does not contain a report of such testing. Dr. Emper appears to have relied heavily
on appellant’s reported lack of prior symptoms, but the Board has held that the fact that a
condition manifests itself or worsens during a period of employment17 or that work activities
produce symptoms revelatory of an underlying condition18 does not raise an inference of causal
relationship between a claimed condition and employment factors.
In several brief reports dated in November and December 2005, Dr. Emper posited that
appellant sustained a left medial meniscus tear due to walking his delivery route on
November 10, 2005 or walking his route in “early November 2005.” However, he did not
provide any medical rationale for his opinion on causal relationship in these reports. In several
form reports and notes dated beginning in February 2006, Dr. Rosenfeld, an osteopath and
Board-certified orthopedic surgeon, listed the date of injury as October 10, 2005 and indicated
that appellant’s left medial meniscus tear was due to this injury. His reports contain no medical
rationale on the issue of causal relationship and therefore would not be sufficient to establish
appellant’s claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a left knee injury in the performance of duty. He established the occurrence of
employment factors, but did not establish that he sustained a left knee injury due to the accepted
factors.

17

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

18

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 17, 2006 and December 23, 2005 decisions are affirmed.
Issued: January 29, 2007
Washington, DC

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

David S. Gerson, 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
__________________________________________
P.L., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 08-1630
Issued: December 4, 2008

Case Submitted on the Record

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

JURISDICTION
On May 20, 2008 appellant filed a timely appeal from a March 19, 2008 decision of the
Office of Workers’ Compensation Programs granting a schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than five percent impairment of her left upper
extremity or any impairment of her right upper extremity causally related to her accepted
bilateral carpal tunnel syndrome.
FACTUAL HISTORY
On August 15, 1997 appellant, then a 50-year-old welder, filed an occupational disease
claim alleging that she developed a bilateral wrist condition due to her work activities. Her
claim was accepted for bilateral carpal tunnel syndrome. Appellant underwent a right wrist
carpal tunnel release on February 25, 1998 and a left carpal tunnel release on March 31, 1998.

Her physician released her to regular work as of April 27, 1998. On March 29, 2005 appellant
filed a claim for a schedule award.
In a March 26, 2007 report, Dr. Lawrence R. Morales, an attending Board-certified
orthopedic surgeon, stated that appellant had 10 percent impairment to each upper extremity due
to motor function deficit, according to the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). He indicated that she had
no right or left upper extremity impairment due to sensory deficit. However, in a January 7,
2008 report, Dr. Morales indicated that appellant complained of pain, numbness, tingling,
soreness, achiness and burning in both hands and wrists. Appellant also had a tendency to drop
things when her symptoms were severe.
In an August 2, 2007 report, Dr. Steven L. Gershon, a Board-certified physiatrist, stated
that a nerve conduction study and electromyography [EMG] of appellant’s right upper extremity
were normal. On August 9, 2007 he stated that a nerve conduction study and EMG of her left
upper extremity were normal with the exception of a prolonged medial-radial latency difference
revealed in the sensory portion of the nerve conduction study. Based on the electrodiagnostic
tests, Dr. Gershon found that appellant had mild recurrent left carpal tunnel syndrome.
In a January 9, 2008 report, Dr. Willie E. Thompson, a Board-certified orthopedic
surgeon and an Office medical adviser, reviewed appellant’s medical records, including the
August 2007 nerve conduction studies and EMG reports. He stated that the physical
examination by her attending physicians was “essentially within normal limits.” Dr. Thompson
found that, based on abnormal electrodiagnostic tests and a normal physical examination,
appellant had five percent impairment of her left upper extremity according to Chapter 16, page
495 of the fifth edition of the A.M.A., Guides pertaining to impairment due to carpal tunnel
syndrome. He found that she had no right upper extremity impairment, noting a normal nerve
conduction study and electromyography.
By decision dated March 19, 2008, the Office granted appellant a schedule award based
on five percent impairment of her left upper extremity for 15.60 weeks from August 9 to
November 26, 2007.1
LEGAL PRECEDENT
Section 8107 of the Act2 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as

1

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of the upper extremity. 5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by five percent equals 15.60 weeks
of compensation. Subsequent to the March 19, 2008 Office decision, appellant submitted additional evidence. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

5 U.S.C. § 8107.

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permanent impairment. The Office evaluates the degree of permanent impairment according to
the standards set forth in the specified fifth edition of the A.M.A., Guides.3
Chapter 16 of the fifth edition of the A.M.A, Guides provides the framework for
assessing upper extremity impairments.4 Office procedures5 provide that upper extremity
impairment secondary to carpal tunnel syndrome and other entrapment neuropathies should be
calculated using section 16.5d and Tables 16-10, 16-11 and 16-15.6
Additionally, the fifth edition of the A.M.A., Guides, regarding impairment due to carpal
tunnel syndrome, provides:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present -(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described [in Tables 16-10a and 16-11a].
(2) Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed [five percent] of the upper extremity may
be justified.
(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”7
The Board has found that the fifth edition of the A.M.A., Guides provides that
impairment for carpal tunnel syndrome be rated on motor and sensory deficits only.8

3

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001, the Office began using the A.M.A., Guides

th

4

A.M.A., Guides 433-521.

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003).
6

A.M.A., Guides 491, 482, 484, 494, respectively.

7

Id. at 495.

8

Kimberly M. Held, 56 ECAB 670, 674 (2005).

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ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Thompson found that appellant had five percent impairment of her left upper
extremity based on her medical records, including the August 2007 nerve conduction studies and
EMG reports. He stated that her physical examination was “essentially within normal limits.”
Dr. Thompson found that, based on abnormal electrodiagnostic tests and a normal physical
examination, appellant had five percent impairment of her left upper extremity according to
Chapter 16, page 495 of the fifth edition of the A.M.A., Guides pertaining to impairment due to
carpal tunnel syndrome. Apparently, he found that her condition fit the second scenario
described at page 495 regarding carpal tunnel syndrome which provides that, where there is
“normal sensibility and opposition strength with abnormal sensory and/or motor latencies or
abnormal EMG testing of the thenar muscles,” a residual carpal tunnel syndrome is present and
an impairment rating “not to exceed five percent of the upper extremity may be justified.”
Dr. Thompson found that appellant had no right upper extremity impairment based on a normal
nerve conduction study and EMG. His statement that she had an essentially normal physical
examination is contradicted by Dr. Morales’ January 7, 2008 report. Dr. Morales indicated that
appellant had pain, numbness, tingling, soreness, achiness and burning in both hands and wrists
and she sometimes dropped things. Therefore, appellant’s most recent physical examination, on
January 7, 2008, was not “essentially within normal limits.” The symptoms described by
Dr. Morales suggest some degree of bilateral sensory impairment. It is not clear whether
Dr. Thompson reviewed the report of Dr. Morales as it was not addressed in his January 9, 2008
impairment rating. In August 2007, Dr. Gershon found that a nerve conduction study and EMG
of appellant’s left upper extremity were normal, with the exception of a prolonged medial-radial
(median and radial nerves) latency difference revealed in the sensory nerve portion of the nerve
conduction study. Thus, his report also supports left upper extremity sensory deficit.
Additionally, Dr. Gershon’s report correlates with the first scenario at page 495, which describes
positive clinical findings of median nerve dysfunction and electrical conduction delays.
Regarding his finding of normal electrodiagnostic studies for appellant’s right upper extremity,
as noted, Dr. Morales’ January 7, 2008 report described both left and right upper extremity
symptoms of pain, numbness, tingling, soreness, achiness, burning and a tendency to drop things,
suggesting sensory impairment.9 Dr. Morales found, in his March 26, 2007 report, that appellant
had bilateral motor function deficit which is compatible with the first carpal tunnel syndrome
scenario at page 495. The Board finds that the medical evidence is not sufficiently developed to
establish appellant’s left and right upper extremity impairment due to her accepted bilateral
carpal tunnel syndrome. On remand, the Office should further develop the medical evidence
regarding the nature and extent of appellant’s left and right upper extremity impairment causally
related to her accepted bilateral carpal tunnel syndrome.

9

The A.M.A., Guides indicates at page 495 that five percent of individuals with carpal tunnel syndrome may
have normal electrophysiologic studies.

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CONCLUSION
The Board finds that this case is not in posture for a decision on the issue of appellant’s
entitlement to a schedule award for her left and right upper extremities. On remand, the Office
should further develop the medical evidence as to the nature and extent of her impairment
causally related to her accepted bilateral carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 19, 2008 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: December 4, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.H., Appellant
and
U.S. POSTAL SERVICE, EMBARCADERO
POSTAL CENTER, San Francisco, CA,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 15-495
Issued: May 13, 2015

Case Submitted on the Record

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

On January 6, 2015 appellant, through counsel, filed a timely appeal from a December 9,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that
appellant had not established periods of total disability beginning November 4, 2013. The Board
docketed the appeal as No. 15-495.
The record before the Board indicates that appellant has three accepted employment
injuries. In claim number xxxxxx670, appellant, on May 22, 2008, in her capacity as a mail
handler, injured her back when opening an overhead mail container. OWCP accepted her claim
for sprain of lumbosacral joint. In claim number xxxxxx781, appellant, on September 15, 2004,
fell back injuring her right hand and back while attempting to unload a mail cage from a truck.
OWCP accepted the claim for lumbar and neck sprain and contusion of the right hand. It
combined claim numbers xxxxxx781 and xxxxxx670, which are both currently before the Board,
with the latter as the master file.1
1

By decision dated July 18, 2012 under claim number xxxxxx670, the Board reversed a December 7, 2011
OWCP merit decision, finding that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 3, 2011 due to an unresolved conflict in medical evidence. Docket
No. 12-609 (issued July 18, 2012).

Appellant also had an accepted claim for a bilateral foot condition, claim number
xxxxxx649, which is not currently available for review by the Board. The record indicates that
appellant was performing light-duty work until November 3, 2013 in accordance with her
restrictions under claim number xxxxxxx649. Appellant then stopped work on November 4,
2013 and has not returned. OWCP denied appellant’s claim for periods of disability beginning
November 4, 2013 in its December 9, 2014 decision currently before the Board.
OWCP’s decision dated June 9, 2014 and the medical evidence in the record address
appellant’s disability for work due to both her back injuries and her foot conditions accepted in
claim number xxxxxx649. While OWCP stated that it was not making a finding of fact with
respect to claim number xxxxxx649 in the December 9, 2004 decision, in the June 9, 2014
decision, OWCP stated that appellant’s physicians failed to reference which of her work duties
under claim number xxxxxx649, caused her ongoing disability. Appellant’s attending physician,
Dr. Michael E. Hebrard, a Board-certified physiatrist, has opined that appellant’s foot conditions
resulted in consequential injuries to her spine and resulted in her alleged periods of total
disability. OWCP included a description of the accepted conditions of her foot injury in the
statement of accepted facts when referring her claim for a second opinion evaluation by
Dr. Mohinder Nijjar, a Board-certified orthopedic surgeon, and he addressed this claim in his
report.
The Board, having reviewed the case record, finds that the case is not in posture for
decision. The Board finds that the factual and medical issues regarding appellant’s current
claims for disability are intertwined such that all three OWCP claims must be combined2 and a
de novo decision issued regarding whether her claims for disability beginning November 4, 2013
and continuing are employment related.

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8
(February 2000).

2

IT IS HEREBY ORDERED THAT the December 9, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: May 13, 2015
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
BOYERS PERSONNEL SERVICE CENTER,
Boyers, PA, Employer
__________________________________________

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Appearances:
Peter Pietrandrea, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0653
Issued: September 26, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On February 5, 2018 appellant, through counsel, filed a timely appeal from a
September 26, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective February 5, 2017, as he no longer had
disability or residuals due to his accepted conditions; and (2) whether appellant has established
continuing employment-related disability after February 5, 2017 due to his accepted lumbar and
right shoulder conditions.
FACTUAL HISTORY
On June 26, 2011 appellant, then a 47-year-old program analyst filed an occupational
disease claim (Form CA-2) alleging that his preexisting injury3 was aggravated by the “repetitive
motions and simple tasks” performed during his employment. He noted that he first realized that
his condition resulted from his federal employment on June 20, 2011. Appellant stopped work on
June 20, 2011 and returned to full duty on December 5, 2011.
OWCP accepted appellant’s claim for temporary exacerbation of other acquired
deformities of other parts of the right limb, resolved to preexisting injury level, and late effect of
injury to nerve roots, spinal plexuses, and nerves of the right shoulder and arm, resolved to
preexisting injury level. It subsequently accepted that he sustained a recurrence of disability for
the period December 13, 2013 to November 10, 2014. Appellant sustained another recurrence of
disability on July 27, 2015.
Appellant received medical treatment from Dr. Robert H. Potter, Jr., a family practitioner.
In a December 28, 2015 examination report, Dr. Potter noted appellant’s complaints of chronic
and unremitting back and right shoulder pain that prevented him from “doing anything.” He
reported examination findings of normal alignment and mobility of the spine. Dr. Potter diagnosed
late effect injury of the nerve shoulder and limb, back pain in the thoracic region, limb deformity,
and chronic right shoulder pain. He completed a work excuse note, which excused appellant from
work indefinitely. Dr. Potter indicated that appellant was “not expected to regain the ability to
work in the future.”
On March 9, 2016 OWCP referred appellant’s case, along with a statement of accepted
facts (SOAF) and a copy of the record, to Dr. Victoria M. Langa, a Board-certified orthopedic
surgeon and second opinion examiner, to determine the status of his current residuals and disability
due to his accepted conditions. In an April 6, 2016 report, Dr. Langa discussed his medical history
and provided physical examination findings regarding his back and right shoulder. She reported
winging of the scapula with upper back atrophy, diffuse nonlocalized tenderness with diffuse
palpation, and significantly restricted right shoulder range of motion. Dr. Langa diagnosed
progressively worsening chronic right shoulder condition with scapular winging/atrophy (long
thoracic nerve injury), degenerative joint disease, and significantly restricted range of motion. She
determined that appellant was permanently disabled from work, but explained that his inability to

3

The record reveals that in 1990 appellant sustained a serious crush injury to his right side when a beam fell on
him while employed by a private employer. He required multiple shoulder surgeries which resulted in nerve damage,
paralysis, and a failed major tendon transplant.

2

work was unrelated to his federal employment duties. Rather, appellant was experiencing a
“relentless progression of the underlying preexisting condition.”
In an April 22, 2016 letter, Dr. Potter noted his disagreement with Dr. Langa’s April 6,
2016 second opinion report. He related that appellant had previously been on workers’
compensation for his shoulder problems and had made an effort to return to work. Dr. Potter
described that on July 27, 2015 appellant was typing at work when he experienced “spontaneous
pain” in his right shoulder. He opined that the injuries appellant suffered at work on July 27, 2015
resulted in his inability to continue to work in his previous capacity.
Dr. Potter further indicated in a June 24, 2016 examination note that appellant had
objective medical findings of a winged scapula, muscle atrophy around the shoulder, and pain with
range of motion. He reported diagnoses of back pain in the thoracic region, late effect injury of
peripheral nerve shoulder girdle and upper limb, and chronic shoulder pain. Dr. Potter explained
that appellant had been seen by many specialists who came to the same conclusion that appellant’s
conditions resulted in a permanent disability, for which there was no cure. He opined that “this is
caused by activity at work and aggravated by activity at work, in fact, any activity involving the
right upper extremity.” Dr. Potter related that “any kind of work-related activity would accelerate
the pain and disability.” He noted that appellant was unable to return to work.
OWCP determined that a conflict in the medical opinion evidence existed between
Dr. Potter, appellant’s treating physician, and Dr. Langa, OWCP’s second-opinion physician,
regarding the current status of appellant’s accepted conditions. It referred appellant, along with
an updated SOAF, to Dr. Oriente DiTano, a Board-certified orthopedic surgeon, for an impartial
medical examination to resolve the conflict. The May 31, 2016 SOAF indicated that appellant’s
claim had been accepted for temporary exacerbation of preexisting limb acquired deformities of
other parts on the right and late effort of injury to nerve roots spinal plexuses and nerves of shoulder
and arm on the right. It also described his nonwork-related 1990 crush injury and noted that he
sustained recurrences on June 20, 2011, December 13, 2013, and July 27, 2015.
In a July 22, 2016 report, Dr. DiTano indicated that he reviewed appellant’s medical
records. He described appellant’s 1990 crush injury and the medical treatment he had received.
Dr. DiTano noted that appellant reinjured his right shoulder in the process of doing his job,
specifically typing, in 2011, 2012, and 2015. Upon physical examination, he observed significant
scapular winging and limited range of motion. Dr. DiTano reported no atrophy, tenderness,
crepitus, or instability of the shoulder. He explained that appellant’s June 20, 1990 injury caused
a “chronic pathologic condition in [appellant’s] right shoulder” and thoracic nerve, which caused
a permanent instability with appellant’s scapulothoracic joint motion and his glenohumeral joint
balance. Dr. DiTano indicated that he did not believe that the “mechanism that occurred on
June 20, 2011 from sitting at a desk typing would have caused an exacerbation of the shoulder
condition, because one can sit at a computer and type with no rotator cuff and with a fused
shoulder.” He noted that appellant would continue to have problems with his right shoulder,
regardless of whether appellant is at the workplace or not.
In response to OWCP’s questions, Dr. DiTano determined that appellant no longer had
residuals of his accepted work-related conditions. He also reported that appellant was partially
disabled, but noted that the disability was due to the previous 1990 nonwork-related right shoulder

3

injury and not the June 20, 2011 work injury. Dr. DiTano explained that the “supposed injury that
occurred on June 20, 2011” caused no restrictions because an injury would have occurred whether
appellant was working or not. He reported that appellant was permanently disabled from work
due to his preexisting shoulder condition and had reached maximum medical improvement.
Dr. DiTano completed a work capacity evaluation form with specified restrictions related to his
accepted conditions.
On July 26, 2016 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits. It found that the special weight of medical evidence rested with the July 8, 2016
medical report of Dr. DiTano, the impartial medical examiner, who determined that appellant’s
residuals related to his accepted work-related conditions had ceased and that he was no longer
disabled from work due to his accepted conditions. Appellant was afforded 30 days to submit
additional evidence or argument, in writing, if he disagreed with the proposed termination.
In an August 22, 2016 letter, counsel contended that, while Dr. DiTano determined that
appellant could, in theory, sit and type without moving his shoulder, if appellant was in fact moving
his shoulder and scapula while typing, then those mechanisms would cause an exacerbation of his
underlying condition. He asserted that a determination of whether appellant used his rotator cuff
and shoulder while typing must be made.
By letter dated October 20, 2016, OWCP requested clarification from Dr. DiTano. It asked
“if [appellant] does move his shoulder, rotator cuff, and scapula when typing, then could this
exacerbate his underlying chronic condition?” If Dr. DiTano answered no, he was asked to explain
why not. If he answered yes, then he was asked to explain the effects of the assumed exacerbation
and whether it was temporary or permanent.
In a November 9, 2016 report, Dr. DiTano opined that typing at a desk did not cause an
exacerbation of appellant’s chronic underlying condition. He explained that appellant “potentially
could have some motion of his shoulder, but I do n[o]t feel that motion would have exacerbated
[appellant’s] chronic underlying condition.” DiTano noted that “a patient can have a fusion of a
shoulder where there is absolutely no shoulder motion at all and can still easily type on a computer.
If that is the case, then it would tell me that there is very little shoulder motion that is needed in
typing….”
In a December 9, 2016 report, Dr. Potter indicated that he treated appellant for complaints
of chronic pain and disability from preexisting injuries. He reviewed appellant’s history and
provided examination findings of winging of the right scapula and decreased range of motion of
the right shoulder. Dr. Potter diagnosed back pain in the thoracic region, hyperlipidemia, chronic
right shoulder pain, and late effect of injury to peripheral nerve of shoulder girdle and or upper
limb.
By decision dated January 13, 2017, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective February 5, 2017. It found that the special
weight of medical evidence rested with Dr. DiTano, the impartial medical examiner, who had
determined, in July 22 and November 9, 2016 reports, that appellant no longer had any residuals
or disability causally related to his accepted conditions.

4

On February 2, 2017 counsel requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. A telephonic hearing was held on July 12, 2017.
In support of his claim appellant submitted additional evidence, including progress notes
dated October 21 and November 16, 2015 by Dr. James L. Cosgrove, Board-certified in physical
medicine, rehabilitation, and pain medicine. Dr. Cosgrove noted appellant’s preexisting crush
injury and noted appellant’s complaints of increasing pain and numbness and difficulty performing
activities of daily living. He reported examination findings of marked winging of the right scapula
with limitation of the shoulder on range of motion. Dr. Cosgrove diagnosed winging of the scapula
with shoulder subluxation, glenohumeral arthritis, and upper extremity dysfunction.
OWCP also received a July 27, 2017 letter by Dr. Potter who indicated that he had treated
appellant for 30 years and was very familiar with appellant’s employment history and current work
requirements. He noted that he disagreed with Dr. DiTano’s assumption that appellant’s job duties
did not require frequent shoulder motions. Dr. Potter contended that, as appellant’s job duties in
fact required frequent shoulder motion, those duties led to a permanent aggravation of his
preexisting condition. He explained that appellant had undergone several surgeries and completed
several rehabilitation programs since his original 1990 injury, but unfortunately “[appellant’s]
debility progressed.” Dr. Potter noted that appellant’s work activities increased his pain and
prevented him from completing those duties. He recounted that “the activities that are required by
his work cause aggravation of his underlying shoulder problems.” Dr. Potter further indicated that
appellant was “currently unable to perform the duties of his recent employment.” He also provided
a July 27, 2017 examination note.
By decision dated September 26, 2017, an OWCP hearing representative affirmed the
January 13, 2017 termination decision. She found that the new medical evidence submitted was
insufficient to overcome the special weight of the medical evidence accorded to Dr. DiTano.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits.4 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.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
4
M.M., Docket No. 17-1264 (issued December 3, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

See R.R., Docket No. 19-0173 (issued May 2, 2019); E.B., Docket No. 18-1060 (issued November 1, 2018).

6

G.H., Docket No. 18-0414 (issued November 14, 2018).

7

L.W., Docket No. 18-1372 (issued February 27, 2019).

5

establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
Section 8123(a) of FECA 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 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, must be given special
weight.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 5, 2017.
In a July 22, 2016 report, Dr. DiTano accurately noted appellant’s nonwork-related injury
in 1990 and related that appellant reinjured his right shoulder at work in 2011, 2012, and 2015.
He provided examination findings. Dr. DiTano opined that the mechanism that occurred on
June 20, 2011 from sitting at a desk typing would not have caused an exacerbation of the shoulder
condition. He further opined that the “supposed injury that occurred on June 20, 2011” caused no
restrictions.
The May 31, 2016 SOAF provided to Dr. DiTano properly indicated that OWCP had
accepted appellant’s June 20, 2011 claim for temporary exacerbation of other acquired deformities
of other parts of the right limb and late effect of injury to nerve roots spinal plexuses and nerves
of the right shoulder and arm. However, Dr. DiTano did not follow this acceptance in rendering
his medical opinion.
The Board has held that the report of an impartial medical examiner who disregards a
critical element of the SOAF and disagrees with the medical basis for acceptance of a condition is
defective and insufficient to resolve the existing conflict of medical opinion evidence.11
Dr. DiTano’s report is, therefore, not entitled to the special weight as a referee physician
and is insufficient to meet OWCP’s burden of proof to terminate appellant’s wage-loss
compensation and medical benefits. Accordingly, the Board finds that OWCP erred by terminating
appellant’s wage-loss compensation and medical benefits, effective February 5, 2017, based on
the impartial medical report of Dr. DiTano.

8

R.P., Docket No. 18-0900 (issued February 5, 2019).

9

5 U.S.C. § 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019).

10

D.W., Docket No. 18-0123 (issued October 4, 2018).

11

See V.C., Docket No. 14-1912 (issued September 22, 2015).

6

CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective February 5, 2017.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2017 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 26, 2019
Washington, D.C.

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbia, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stanley C. Mason, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-605
Issued: June 1, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 26, 2015 appellant, through counsel, filed a timely appeal from a July 30,
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.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition due to factors of her employment.
FACTUAL HISTORY
On May 13, 2013 appellant, then a 48-year-old customer service supervisor, filed an
occupational disease claim alleging that she experienced chest pains, difficulty sleeping and
eating, weight loss, and stress as a result of working in a hostile work environment. She stated
1

5 U.S.C. § 8101 et seq.

that she was subjected to frequent loud outbursts by her manager, Postmaster Launda Milner,
threats to her job security by intimidation, humiliation in the presence of her coworkers,
emotional and spiritual cruelty, and aggressive behavior by bullying. Appellant first became
aware of her condition and realized that it resulted from her employment on May 10, 2013. She
stopped work on May 15, 2013.
The employing establishment controverted appellant’s claim. In a statement, Ms. Miller
noted that she had several complaints regarding appellant’s behavior. She related that during a
meeting on May 10, 2013 appellant jumped out of her seat and began to holler and scream at
Supervisor Arlene Streeter. Ms. Milner stated that she had to end the meeting to address
appellant’s behavior and to discuss with appellant several other complaints from employees
regarding her behavior. She reported that appellant was unreceptive to the issues addressed.
Ms. Milner stated that when she spoke with appellant later that day via telephone she became
loud and continued to scream and holler in the same manner as earlier. Appellant left work early
that day and has not reported back to work.
In an April 9, 2013 report, Dr. Elvira Pasmanik, a Board-certified internist, noted that
appellant had an appointment on April 9, 2013 for complaints of chest pain. She related that
appellant was unable to work from April 9 to 12, 2013.
In a May 21, 2013 statement, appellant alleged that since January/February 2013
Ms. Milner bullied, harassed, and intimidated her. She described an incident in the early part of
2013 when Ms. Milner called her into her office to speak with her and began yelling, screaming,
insulting, mocking, and taunting her. Ms. Milner refused to let appellant leave and she became
so overwhelmed and emotional by the verbal insults that she fell down on the floor and began
crying hysterically. Appellant requested to speak with Ms. Milner’s boss, John Cordell, but he
declined to meet with her. She mentioned another incident in March/April 2013 when
Ms. Milner tried to pull a chair from behind her while she was seated at the distribution desk and
she almost fell down. Appellant described a third incident in April/May 2013 when Ms. Milner
started screaming and flailing her hands at appellant saying, “Get out of my office!” She
mentioned a fourth incident that occurred on May 9, 2013 when she asked Ivan Hurwitz, a
carrier shop steward, a question while he was speaking with Ms. Milner and she began to flail
her hands and loudly stated, “Ivan, you [do not] have to answer that!” Appellant noted that
Ms. Milner called her into her office several hours later and began to scream at her. She stated
that on May 10, 2013 Ms. Milner called her and continued to question her religion even though
she informed Ms. Milner that her comments about religion were offensive to her. Later on that
day Ms. Milner called appellant on her cell phone and threatened her if she filed an accident
report.
By letter dated May 21, 2013, OWCP advised appellant that there was insufficient
evidence to establish her claim. Appellant was advised as to the medical and factual evidence
required to support her claim and was given 30 days to provide such information and respond to
an attached questionnaire. OWCP also sent a similar letter to the employing establishment and
requested additional evidence.
In various reports dated May 11 to 31, 2013, Dr. Pasmanik stated that appellant was
under her care for chest pains and stress. She noted that appellant was hospitalized from May 10

2

to 11, 2013 and would be evaluated on May 13, 2013 to determine whether she could return to
work. Dr. Pasmanik reported that appellant was incapacitated from work since May 10, 2013.
On June 10, 2013 appellant responded to OWCP’s development letter. She explained
that she remained at work from 5:30, 6:30, or 7:30 a.m. until 8:00, 9:00, or 10:00 p.m. Appellant
stated that on March 31, 2013 she was at home and became so overwhelmed at having to create
the schedule for the carriers that she had to go to the emergency room due to chest pains. She
alleged that Ms. Milner would often assign her duties that could not be performed within 8 hours
and was told to work 10 hours. Appellant further contended that Ms. Milner subjected her to
emotional stress, hostility, and mental cruelty nearly every day by belittling and screaming at her
in front of coworkers. She noted that these actions diminished her authority over the people she
was assigned to supervise. Appellant stated that Ms. Milner refused two of her requests for
transfer. She asserted that on May 10, 2013 Ms. Milner called her on her cell phone and
threatened her if she filed an accident report. Appellant noted that she filed a request for Equal
Employment Opportunity counseling and filed a complaint with the Department of Labor due to
violations of the Family and Medical Leave Act (FMLA). She referred to her March 21, 2013
statement, which described other incidents of harassment.
Regarding her claimed conditions, appellant explained that Ms. Milner’s behavior
towards her began in January 2012. She began to experience chest pains, felt overwhelmed, and
cried at home worrying about the lack of adequate coverage. Appellant noted that her quality of
life went from being happy to being afraid of being subjected to mental cruelty and insidious
ridiculing. She reported that talking to a counselor made her feel better, but then she returned to
thinking about having to work for Ms. Milner again. Appellant stated that in late 1985, early
1986 she became overwhelmed and stressed due to not having passed the required scheme
training at the time and was taken to the hospital. She was hospitalized for 7 to 10 days and was
again hospitalized for an emotional condition from May 10 to 11, 2013. Appellant noted that she
was currently under the care of a counselor for emotional stress, anxiety, chest pains, and
feelings of being overwhelmed due to bullying, intimidating, harassment, religious mockery, and
mental cruelty. She explained that she was learning how to avoid burnout and how to manage
and survive the abusive treatment she was subjected to by Ms. Milner.
Appellant also disagreed with Ms. Milner’s statement that she screamed at Ms. Streeter, a
supervisor, during a May 10, 2013 meeting. She stated that during that meeting she became so
emotional and fearful of Ms. Milner that she had an emotional breakdown and requested to leave
the room. Ms. Milner would not let her leave and told her to sit there until she was done yelling
and screaming at her. Appellant noted that both Ms. Streeter and Ms. Milner began to belittle,
demean, and harass her. She reported that on May 11, 2013 she contacted Ms. Milner via the
employing establishment’s call system and left a leave slip with Josh Burrus, a supervisor,
regarding her absence. Appellant contended that Ms. Milner deliberately placed her in absent
without leave (AWOL) status for 24 hours despite the approval of the absence as FMLA. She
stated that she submitted medical documentation on two occasions for her absence which was
approved by the employing establishment’s FMLA Coordinator. Appellant explained that she
had not reported back to work due to Ms. Milner’s unprofessional, demeaning, bullying, and
intimidating actions towards her.

3

Appellant submitted a May 31, 2012 employing establishment form titled “Information
for PreComplaint Counseling” where she alleged that she was discriminated against for her color
and religion by Ms. Milner. She stated that on May 10, 2013 she was at a meeting with
Ms. Milner where she was berated, yelled, and screamed at. Appellant also noted that
Ms. Milner left messages on her cell phone answering machine commenting on her religious
messages. She contended that there was a continuing pattern of harassment towards her.
Appellant submitted various hospital records including April 1, 2013 hospital discharge
instructions which indicated that she was treated for chest pain of an uncertain cause. She also
submitted May 10, 2013 hospital records which revealed that she was examined for complaints
of sudden onset of chest pain.
Appellant submitted a May 16, 2013 form which approved her request for FMLA leave
from May 10 to June 13, 2013. She also submitted copies of her telephone records and indicated
which listing was Ms. Milner’s call to her on May 10, 2013.
In a June 1, 2013 statement, appellant’s husband, reported that his wife worked long
hours of 12 or more hours a day and complained of constant verbal and emotional battering from
Ms. Milner. He noted that since appellant’s employment with the employing establishment he
has witnessed her chest pains, crying bouts, weight loss, sleep deprivation, emotional
vulnerability, and inattentiveness. Appellant’s husband stated that Ms. Milner called his wife’s
personal cell phone on several occasions after work and on her off days and he could hear the
loud and hostile tone of Ms. Milner. He also described an incident when his wife was called to
the office and verbally abused by Ms. Milner. Appellant’s husband alleged that Ms. Milner’s
actions created a hostile work environment and caused lasting effects on his wife’s overall
physical and mental well-being.
In a June 2, 2013 statement, appellant’s sister, noted that when appellant first began her
new assignment at the employing establishment’s worksite she shared with her that the hours
were long and that Ms. Milner frequently yelled. She related that appellant began to express her
concerns regarding her managers’ behavior towards her. Appellant informed Ms. Monroy that
Ms. Milner was causing her to have some stressors, often times being verbally abusive,
humiliating, and intimidating her among coworkers and other supervisors and harassing
appellant about her religious beliefs. Ms. Monroy stated that she noticed her sister became
fearful, hopeless, helpless, and agitated and that she experienced sleep problems, difficulty
concentrating, weight loss, and loss of appetite.
In a June 4, 2013 intake evaluation report, Dr. James W. Taylor, a clinical psychologist,
examined appellant on May 28, 2013 for complaints of stress and anxiety related to problems in
her workplace. Appellant stated that she was stressed out with periods of shaking and crying,
tension in her chest, headaches and nausea, disturbed sleep, feelings of despair and hopelessness,
and panic attacks. Dr. Taylor related that she described a very stressful situation at work with
demand for extended hours without additional pay and yelling at the workers and supervisors.
He provided findings on examination and diagnosed major depressive disorder and single
episode acute stress disorder. Dr. Taylor opined that because of appellant’s extreme stress
reactions she should remain on FMLA leave until her workplace stress is resolved or until a new
site had been established.

4

In a June 5, 2013 statement, appellant’s son, stated that his mother often called him
crying hysterically after explaining how she was tormented by her supervisor, Ms. Milner. He
noted that he was disturbed to hear the details of the harassment she experienced on a daily basis
and the comments made concerning her religion. Appellant’s son reported that his mother was
hospitalized more than once as a result of the aggravated stress sustained during her
employment.
In a June 25, 2013 return to work note, Dr. Pasmanik stated that appellant could return to
work to perform her supervisor duties effective June 29, 2013. She noted that she could not
return to her current work facility.
In a June 25, 2013 report, Dr. Taylor stated that he examined appellant on May 28 and
June 8 and 25, 2013. He related that when she thought about her employment under Ms. Milner
she continued to have serious symptoms of stress, anxiety, and shortness of breath. Dr. Taylor
opined that appellant’s problems had been situational in nature because of the harassing
environment at her worksite. He noted that she was eager and ready to start working at a
different worksite and advised that she was capable of returning to full duty if the job
opportunity becomes available.
In a July 22, 2013 statement, Ms. Milner related that on or about January 18, 2013
Human Resources informed her of an anonymous complaint regarding appellant’s conduct
toward subordinate employees. She met with appellant in her office in order to discuss her
concerns about management style and recommended that appellant enroll in two online
management courses. Ms. Milner had no recollection of the incident where appellant alleged
that she tried to pull a chair from underneath appellant in front of the staff. She also stated that
another employee informed her that appellant was quoting the Bible and making offensive
statements to several employees. When Ms. Milner addressed this issue with appellant, appellant
became combative and unruly. She further noted that appellant rudely interrupted a conversation
she was having with Mr. Hurwitz.
Regarding the May 10, 2013 incident, Ms. Milner stated that an employee complained of
being stressed out because appellant yelled at him on a regular basis in front of employees
regarding his work performance. When she met with appellant in her office about that matter,
Ms. Streeter walked into the office. Appellant then began to address Ms. Streeter in a very
demeaning manner, got out of her seat, and became so loud that Ms. Milner asked Ms. Streeter to
leave. Ms. Milner informed appellant that her behavior would not be tolerated, but appellant
continued to talk in a manner that was unacceptable and disrespectful. She related that she left
the building shortly after the meeting because she had another meeting to attend. Around 5:30
p.m. she called back to the office to speak with Mr. Burrus about the conditions of the office and
clarify procedures in closing the facility. Mr. Burrus informed Ms. Milner that appellant wanted
to speak with her. Ms. Milner stated that appellant began to ask questions about her hours and
became argumentative and combative so she asked appellant to put Mr. Burrus back on the
telephone. Appellant refused to do so and continued to scream so Ms. Milner ended the
telephone call. Mr. Burrus later told Ms. Milner that appellant abruptly left the building a few
minutes after the telephone conversation.

5

Ms. Milner stated that she has tried to coach and guide appellant to be a better
communicator with the employees and the supervisors, but explained that her efforts had not
been effective with appellant. She pointed out that appellant had several complaints regarding
her mistreatment and disrespectfulness. Ms. Milner also contended that she asked appellant to
go home after her shift but she would stay to overlook what other supervisors and employees
would do during their shifts. She stated that there was no need for appellant to be in the building
beyond her tour.
The employing establishment submitted various e-mails from postal employees regarding
appellant’s behavior towards and treatment of other employees. In a May 21, 2013 e-mail,
Virginia Connolly, appellant’s coworker, informed Ms. Milner about her concerns regarding
appellant’s behavior at work. She stated that appellant spoke to her in a demeaning manner in
front of employees and described various scenarios on April 5, 10, and May 2, 2013 where she
believed appellant was rude, disrespectful, and hostile towards her or other employees and
customers. In another May 23, 2013 e-mail, Ms. Streeter informed Mr. Cordell about an incident
that occurred that day. She related that appellant came to the worksite with her husband and
sister and asked to speak with Ms. Milner about being placed on AWOL status. Ms. Streeter
informed appellant that Ms. Milner was unavailable to meet because she was with the auditors.
Appellant became very annoyed and began to speak in a louder volume. Ms. Streeter
acknowledged that appellant submitted her leave slips, made copies for her, and left.
In an undated letter to the Postmaster General, an anonymous individual who identified
himself as a “post office employee,” reported that appellant misused her authority at work in
order to harass and intimidate employees. He related that she constantly screamed at employees
and spoke to everybody in an extremely disrespectful manner and tone. The employee stated
that there were several occasions where appellant sent employees home or denied them the use
of restroom facilities because she was upset at them. He noted that her continued harassment
and intimidation made every employee at their worksite dread coming to work and had a
negative impact on both employee morale and productivity.
In a decision dated October 1, 2013, OWCP denied appellant’s emotional condition claim
finding that the incidents that she alleged caused her emotional condition were administrative
matters and not considered compensable factors of employment.
In an appeal request form received on November 1, 2013, appellant requested an oral
hearing, which was held on May 14, 2014. Her union representative, Stanley Mason was
present. Mr. Mason stated that the majority of letters submitted by the employing establishment
were irrelevant to whether appellant sustained an occupational disease. He argued that the
manner in which Ms. Milner addressed appellant after those incidents was the cause of her
emotional condition. Mr. Mason first alleged that appellant’s condition arose out of her official
duties as a supervisor of customer service because Ms. Milner told her to address and complete
attendance and work performance which required her to work long hours. He noted that,
although Ms. Milner and Ms. Connelly advised, appellant that she should not be working during
certain hours she was also told to stay at the office until the work was done. Mr. Mason reported
that appellant’s duties as a supervisor of customer service was to follow the orders of Ms. Milner
and to ensure that the performance of the employees were at an acceptable agency level by
addressing and disciplining employees for poor performance.

6

Secondly, Mr. Mason also contended that Ms. Milner harassed and verbally abused
appellant during the performance of these duties. He pointed out that she acknowledged in her
statement that she spoke with appellant regarding the complaints against her. Appellant stated
that Ms. Milner’s abuse towards her was nonstop and constant to the point that she had an
emotional breakdown. She reported that the abuse went from October 2012 to May 2013.
Appellant again described the incident in Ms. Milner’s office with Ms. Streeter where she
refused to let appellant leave the meeting.
Regarding the employing establishment’s response, Mr. Mason argued that Ms. Milner’s
statement about the incident with Ms. Streeter was not factual and not supported by the record.
He stated that she only gathered statements from individuals who she told appellant to discipline.
Mr. Mason also pointed out that the employing establishment did not provide a job description of
her duties so that OWCP could make a proper determination of whether appellant sustained an
injury in the performance of her duties. Appellant further disagreed with Ms. Milner’s
comments about her talking about religion and quoting Scripture. She stated that Ms. Milner
mentioned God and referenced the Bible. Appellant noted that she had some witnesses, but they
had not yet provided any statements.
In a June 1, 2014 statement, appellant contended that the preponderance of the evidence
supported her claim of being injured in the performance of duty. She argued that the statements
from her family members and the various medical reports demonstrate how she was adversely
affected by her work environment and ultimately diagnosed with chest pains and major
depressive disorder. Appellant reported that the letters from Mr. Hurwitz and Ms. Campbell
supported her allegations that she was harassed by Ms. Milner on more than one occasion. She
also contended that the attendance report demonstrated that she worked long hours.
In an undated, handwritten statement, Mr. Hurwitz stated that he witnessed two incidents
between Ms. Milner and appellant where appellant tried to speak with Ms. Milner while she was
speaking with another individual and she raised her voice and asked appellant “Can … you see
we are in a meeting?” In both instances appellant was asked to leave.
In an undated statement, Ms. Campbell stated that she served as acting supervisor at
appellant’s worksite from February to September 2013. She noted that she witnessed on more
than one occasion bullying tactics and disrespectful conduct from Ms. Milner toward appellant.
Ms. Campbell related that several times she saw appellant under extreme stress and crying in her
office. She reported that she talked to Ms. Milner about her mistreatment of appellant but she
felt scared and her job threatened if she continued to speak about Ms. Milner’s behavior.
Appellant submitted a position description for supervisor of customer services. She also
provided a time and attendance report which provided her work hours from April 6 to 26, 2013.
The report revealed that appellant’s regular tour of duty was from 5:50 to 2:30 on Saturdays,
Mondays and Wednesdays to Fridays.
By decision dated July 30, 2014, an OWCP hearing representative denied modification of
the October 1, 2013 decision finding that appellant had not established a compensable factor of
employment.

7

LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional or stress-related condition in
the performance of duty, an employee must submit: (1) factual evidence identifying the
employment factors or incidents alleged to have caused or contributed to the condition;
(2) medical evidence establishing that he or she has an emotional or stress-related disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to the condition.2 If a claimant implicates a factor of
employment, OWCP should determine whether the evidence of record substantiates that factor.
Allegations alone are insufficient to establish a factual basis for an emotional condition claim
and must be supported with probative and reliable evidence. If a compensable factor of
employment is established, OWCP must then base its decision on an analysis of the medical
evidence.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment.4 There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation.5 In the case of Lillian Cutler,6 the Board explained that
there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. 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.7 On the other hand, when a
disability results from a fear of a reduction-in-force or frustration from not being permitted to
work in a particular environment or to hold a particular position such disability falls outside
FECA’s coverage because they are found not to have arisen out of employment.8
ANALYSIS
Appellant has alleged that she experienced stress, chest pains, anxiety, and a depressive
order as a result of her employment. She attributed her emotional condition to several alleged
work activities and incidents. OWCP denied appellant’s claim finding that she failed to establish
a compensable factor of employment. As a preliminary matter, the Board must first determine if
any of these alleged incidents are covered employment factors under FECA.9
2

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

G.S., Docket No. 09-764 (issued December 18, 2009).

4

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

5

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

6

28 ECAB 125 (1976).

7

Id.; see also Trudy A. Scott, 52 ECAB 309 (2001).

8

William E. Seare, 47 ECAB 663 (1996).

9

See P.E., Docket No. 14-102 (issued April 1, 2014).

8

An employee’s emotional reaction to his or her regular or specially assigned duties or to a
requirement imposed by the employment comes within the coverage of FECA.10 Appellant
attributed her emotional condition to working long hours. In a June 10, 2013 statement, she
explained that she was at work at 5:30, 6:30, or 7:30 a.m. and often remained there until 8:00,
9:00, or 10:00 p.m. Appellant, however, has not alleged that her emotional condition was caused
by anxiety relating to not being able to complete her regular or specially assigned duties. Rather,
she alleged that her condition is due to working long hours. The Board also notes that the time
and attendance report that she submitted showed her work hours from April 16 to 26, 2013.
Appellant’s tour of duty was from 5:50 a.m. to 2:30 p.m. In this regard, the Board notes that
appellant has not submitted sufficient evidence regarding her schedule, i.e., whether it was a
fixed schedule, flexible schedule, alternative work schedule, nor has she submitted evidence
regarding the employing establishment’s overtime policy. Rather, appellant has alleged that
Ms. Milner assigned her duties that could not be performed within 8 hours and was told to work
10 hours. Ms. Milner however controverted this allegation, stating that appellant was told to go
home after her shift ended, but that appellant would stay to “overlook what other supervisors and
employees would do during their shift.” The Board finds that the weight of the evidence does
not substantiate appellant’s allegation that she often worked after her shift ended in order to
fulfill her work duties.
Appellant also contested several managerial actions by Ms. Milner, including being
placed on AWOL status and having transfer requests denied. The Board has held that work
space transfers,11 leave matters,12 disciplinary actions,13 and criticism and reprimands,14 are
administrative and personnel matters. Administrative and personnel matters, although generally
related to employment, are administrative functions of the employing establishment rather than
the regular or specially-assigned work duties of the employee and are not covered under FECA,15
unless, the evidence establishes error or abuse on the part of the employing establishment.16 The
employee bears the burden of proof to establish administrative error or abuse.17
In this case, appellant has alleged administrative error or abuse when Ms. Milner placed
her on AWOL status and denied her transfer requests. She provided a FMLA leave form which
demonstrated that her request for FMLA leave was approved for May 10 to June 13, 2013. The
Board notes, however, that there is no evidence on the record that Ms. Milner did indeed place
appellant on AWOL status or deny her transfer requests. Accordingly, there is also no evidence
10

Supra note 6.

11

Dan F. Bennett, Docket No. 05-60 (issued March 7, 2005).

12

J.C., 58 ECAB 594 (2007).

13

G.S., Docket No. 09-764 (issued December 18, 2009).

14

Roger W. Robinson, 54 ECAB 846 (2003).

15

M.C., Docket No. 10-1628 (issued June 8, 2011); Matilda R. Wyatt, 52 ECAB 421 (2001).

16

Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

17

M.W., Docket No. 09-2036 (issued June 2, 2010).

9

that Ms. Milner erred in or abused her administrative duties. The Board has found that an
employee’s complaints concerning the manner in which a supervisor performs his duties as a
supervisor or the manner in which a supervisor exercises his supervisory discretion fall, as a rule,
is 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, which employees will at
times dislike the actions taken, but that mere disagreement or dislike of a supervisory or
management action is not compensable.18 Accordingly, the Board finds that appellant did not
submit sufficient evidence to establish administrative error or abuse regarding these issues.
These incidents, therefore, are not compensable factors of employment.
Appellant also claimed that she was subjected to a hostile work environment from
Ms. Milner. For harassment or discrimination to give rise to a compensable disability, there
must be evidence which establishes that the acts alleged or implicated by the employee did, in
fact, occur.19 Mere perceptions of harassment or discrimination are not compensable under
FECA.20 A claimant must substantiate allegations of harassment or discrimination with
probative and reliable evidence.21 Unsubstantiated allegations of harassment or discrimination
are not determinative of whether such harassment or discrimination occurred.22 A claimant must
establish a factual basis for his or her allegations or harassment or discrimination with probative
and reliable evidence.23
Appellant contended that Ms. Milner often belittled her and screamed at her in front of
her coworkers. She also stated that Ms. Milner made several comments concerning her religion.
In support of her allegations, appellant provided a witness statement by Ms. Campbell who
related that she witnessed Ms. Milner’s bullying tactics and disrespectful conduct towards
appellant on more than one occasion. The Board finds, however, that Ms. Campbell’s statement
is insufficient to establish that Ms. Milner created a hostile work environment. Ms. Campbell
does not reference any specific time or place, nor does she offer any specifics of what
Ms. Milner did or said to appellant. Without specific information, the Board finds that her
statement is insufficient to establish a hostile work environment.24
Appellant also described specific incidents when she was under emotional stress due to
Ms. Milner’s interactions with her. She mentioned two instances in January or February 2013
and in April or May 2013 when Ms. Milner called appellant into her office and screamed, yelled,
18

See Barbara J. Latham, 53 ECAB 316 (2002); see also Peter D. Butt, Jr., 56 ECAB 117 (2004).

19

K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB 622 (2006).

20

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

21

J.F., 59 ECAB 331 (2008).

22

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005).

23

Robert Breeden, supra note 19; Beverly R. Jones, 55 ECAB 411 (2004).

24

See M.D., Docket No. 13-867 (issued September 26, 2014) (the Board found that a witness statement which
confirmed that a supervisor used racial slurs and displayed a white supremacy flag but did not provide any specific
information as to time or place was insufficient to establish a compensable factor of employment).

10

mocked, and taunted her. Appellant also stated that in March or April 2013 Ms. Milner tried to
pull a chair from behind her when she was seated at the distribution desk. She further alleged
that on May 10, 2013 she was in a meeting with Ms. Milner when Ms. Streeter entered the office
and they both began to belittle, demean, and harass her. The Board notes that appellant provided
no corroborating evidence or witness statements to establish that these interactions with
Ms. Milner occurred as she described. While Ms. Milner acknowledges that she met with
appellant in her office on several occasions in order to address employee complaints against her,
there is no evidence on the record to suggest that Ms. Milner screamed and yelled at appellant as
she alleged. As previously noted, a claimant must substantiate allegations of harassment or
discrimination with probative and reliable evidence.25 On the contrary, regarding the May 10,
2013 incident, both Ms. Milner and Ms. Streeter denied that they yelled at appellant and instead
stated that appellant began to holler and scream at Ms. Streeter. Accordingly, the Board finds
that these incidents do not constitute a compensable factor of employment.
Appellant further described a May 9, 2013 incident when she asked Mr. Hurwitz a
question while he was speaking with Ms. Milner. She related that Ms. Milner began to flail her
hands and loudly told Mr. Hurwitz that he did not have to answer appellant. In an undated
statement, Mr. Hurwitz confirmed two incidents when appellant tried to speak to him while he
was talking to Ms. Milner. He related that Ms. Milner raised her voice and asked appellant to
leave. The Board has held, however, that being addressed in a raised or harsh voice does not of
itself constitute verbal abuse or harassment.26
Appellant contended that on May 10, 2013 Ms. Milner called her on her cell phone and
threatened her if she filed an accident report. She provided telephone records which indicated
that a telephone call was made between Ms. Milner and appellant. However, there is no
evidence that during this telephone call that Ms. Milner actually threatened her. The Board has
found that mere perceptions of harassment or discrimination are not compensable under FECA.27
Because appellant has failed to establish a compensable factor of employment, it is not necessary
to address the medical evidence of record.28
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

25

Supra note 20.

26

T.G., 58 ECAB 189 (2006); Charles D. Edwards, 55 ECAB 258 (2004).

27

Supra note 19.

28

See C.G., Docket No. 14-1141 (issued February 27, 2015).

11

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2015
Washington, DC

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

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

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

12