United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Denver, CO, Employer
)
___________________________________________ )
J.S., Appellant

Appearances:
John S. Evangelisti, Esq., for the appellant
No appearance, for the Director

Docket No. 08-2072
Issued: April 20, 2009

Oral Argument November 13, 2008

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal of a March 14, 2008 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of these emotional condition claims.1
ISSUES
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
Appellant argues that the Equal Employment Opportunity (EEO) decision is dispositive
on the issue of whether the supervisor’s conduct amounted to unlawful harassment and
discrimination, creating abusive and/or hostile work environment. In this regard, she alleges that
it is for the Office to determine only whether this unlawful harassment and discrimination equate

1

Appellant also filed an appeal of a March 24, 2008 Office decision for a traumatic injury claim. That matter is
being separately handled by a decision under docket number 09-650.

with error or abuse under the Federal Employees’ Compensation Act standard. Appellant further
reiterated his request that the case file numbers xxxxxx928 and xxxxxx750 be combined.
FACTUAL HISTORY
On February 24, 2006 appellant then a 64-year-old window clerk, filed an occupational
disease claim alleging that she sustained on-the-job stress due to the postmaster’s behavior and
other employees’ actions. She claimed these actions caused stress, hypertension, an eating
disorder and a sleeping disorder. Appellant indicated that she first became aware of the injury
and its relation to her work on May 1, 2005. She stopped work on February 25, 2006 and was
released to modified duty on April 19, 2006.2
On March 6, 2006 the Office requested that appellant submit additional evidence to
support her claim. Several medical reports were received from appellant, verifying that she did
suffer from anxiety and stress disorder. On April 6, 2006, however, the Office denied the claim
noting the receipt of medical records but finding that she failed to provide in detail the
employment-related condition or incidents to which she attributed her conditions and that
therefore she had failed to meet her burden of proof that her condition was sustained in the
performance of duty.
On April 11, 2006 the Office received correspondence from the employing establishment
controverting the claim.
On October 25, 2006 appellant requested reconsideration, providing additional
information and medical reports regarding her claim. The factual evidence submitted by
appellant consisted of statements by her friends and coworkers of her, customers of the
employing establishment, medical reports, a provision of the collective bargaining agreement, an
employing establishment policy noting zero tolerance for workplace violence, a newspaper
clipping citing problems with the employing establishment and an EEO complaint filed on
August 28, 2006.
Appellant alleged that Mr. Curry abolished her job, daily subjected her to temper
outbursts, verbal abuse, scorn and intimidation, violated her confidentiality by sharing personal
information with others, refused to give her telephone messages, listened to private conversation,
required her to work long hours and always berated the employees in the employing
establishment. She noted that Mr. Curry’s actions were usually made when he believed that they
were alone. A statement from a friend, Mary Lawrence, noted that appellant had confided to her
about Mr. Curry’s harassment. Appellant found that his actions made it impossible for her to
feel safe or productive.
The employing establishment responded to each allegation specifically, finding most of
them vague and unspecific regarding date and time and place and, where the allegations were
specific, provided Mr. Curry’s statement that specifically denied the allegations.

2

The record reflects that, prior to her job with the employing establishment; appellant was treated for posttraumatic stress disorder in 1991 after she was attacked by two dogs.

2

By decision dated July 16, 2007, the Office denied appellant’s occupational disease
claim, finding that there were no compensable factors.
On December 19, 2007 appellant requested reconsideration and submitted a December 4,
2007 Equal Employment Opportunity Commission (EEOC) decision. In that decision, which
addressed the following issue: “Whether the [employing establishment] discriminated against
[appellant] on the basis of her sex, female and age … when on July 5, 2006, Postmaster Curry
yelled at her and placed her on off duty without pay,” the administrative judge found that
appellant had established “a prima facie case of hostile work environment sex and age.” The
administrative judge determined that Mr. Curry’s actions, which included raising his voice,
bringing his face to within 12 inches of appellant’s and yelling at her, were sufficiently severe or
pervasive to alter the condition of her employment and/or create an abusive working
environment. The employing establishment continued to controvert the claim.
By decision dated March 14, 2008, the Office denied modification of its April 6, 2006
and July 16, 2007 decisions.
LEGAL PRECEDENT
An employee seeking benefits under the Act3 has the burden of establishing the essential
elements of his claim, including the fact that an injury was sustained in the performance of duty
as alleged4 and that any disability and/or specific condition for which compensation is claimed
are causally related to the employment injury.5
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 the 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 diagnosed condition is causally related to the employment factors identified by the claimant.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, 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
3

5 U.S.C. §§ 8101-8193.

4

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged. Appellant must also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C.
§ 8101(5) (“injury” defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic
injury” defined).
5

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

6

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

3

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.7
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.8
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. 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. Where the disability results from an employee’s emotional reaction
to her regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Act.9 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 her frustration
from not being permitted to work in a particular environment or to hold a particular position.10
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which she claims compensation was caused or
adversely affected by employment factors.11 This burden includes the submission of a detailed
description of the employment factors or conditions, which that claimant believes caused or
adversely affected the medical condition or conditions, for which compensation is claimed.12
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, it must base its decision on an analysis of the
medical evidence.14
7

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

8

Phillip L. Barnes, 55 ECAB 426 (2004).

9

5 U.S.C. §§ 8101-8193.

10

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
11

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

12

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

13

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

14

Id.

4

ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions.
Appellant made several allegations related to administrative or personnel matters over the
course of April 25, 2005 to July 6, 2006. These allegations involved the alleged abusive method
Mr. Curry used to advise her of deficiencies in her work, such as incorrectly keying an express
mail package, for giving out Mr. Curry’s telephone number, for not receiving personal calls
during work, for speaking to her about her work in front of other supervisors, for clocking in
early, for refusing to take medical notes as proof of illness, for reprimanding her for taking too
long to do tasks, for generally requiring her to provide medical notes when she was on sick leave
and for charging her absent without leave.
These allegations are unrelated to the employee’s regular or specially assigned work
duties and do not generally fall within the coverage of the Act. An employee’s emotional
reaction to administrative actions or personnel matters taken by the employing establishment is
not covered under the Act as such matters pertain to procedures and requirements of the
employer and do not bear a direct relation to the work required of the employee.15
Administrative and personnel matters can become employment factors, however, if there is
evidence that discloses error or abuse. In determining whether the employing establishment
erred or acted abusively, the Board considers whether management acted reasonably in its
exercise of these matters, such as counseling sessions, supervisory discussions, reprimands, for
example.16
Each of these allegations were disputed by the employing establishment and a reasonable
rationale provided for the supervisor’s actions. Additional evidence submitted by appellant does
not specifically refute any of the employing establishment’s response. Coworkers and customers
spoke generally about incidents where Mr. Curry had shown some harassing behavior, but not
about any specific incidents noted by appellant. As appellant provided no corroborating
evidence, such as witness statements corroborating the specific incidents to establish that the
statements were actually made or the actions actually occurred, she has not met her burden to
show error or abuse in these management activities.17
As to specific counseling/disciplinary discussions, the Board has characterized
supervisory discussions of job performance and reprimands as administrative or personnel
matters of the employing establishment that are not covered under the Act, unless there is
evidence of error or abuse.18 Although appellant has proffered certain facts, these facts have
been disputed by the employing establishment. She submitted many statements from others but
none specifically addressed any specific counseling session and thus has not factually supported
15

Sandra Davis, 50 ECAB 450 (1999).

16

See Richard J. Dube, 42 ECAB 916, 920 (1991).

17

See Larry J. Thomas, 44 ECAB 291, 300 (1992).

18

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

5

these claims. Without further substantiation of these events, appellant fails to prove that these
events occurred as alleged.
To the extent that appellant was alleging that she was unhappy with Mr. Curry’s
management style, the Board has held that an employee’s dissatisfaction with perceived poor
management constitutes frustration from not being permitted to work in a particular environment
or to hold a particular position and is not compensable under the Act.19
Although the handling of leave requests and assignment of work duties are generally
related to the employment, they are administrative functions of the employer and not duties of
the employee.20 Mr. Curry explained that appellant did not provide the proper medical
documentation and he was within his management right to demand the proper documentation.
He noted that he demanded such documentation from all employees.
Regarding appellant’s clocking in early, Mr. Curry denied that he screamed at appellant
or sent her home. However, he confirmed that he questioned appellant regarding her early start
because it left the window uncovered in the early evening and noted that she left for the day and
used “unscheduled leave.” Mr. Curry presented a reasonable explanation for his actions and
appellant has not otherwise presented evidence of error or abuse.
Regarding appellant’s allegations on February 24, 2006 that the employing establishment
mishandled her compensation claims, the development of an emotional condition related to such
matters would not arise in the performance of duty as the processing of compensation claims
bears no relation to appellant’s day-to-day or specially assigned duties.21
Appellant also alleged that her emotional condition was caused by overwork because they
were understaffed by four employees. She stated that, on December 22, 2005, she worked 16
hours because she and the clerical staff were directed to work as many hours as needed to send
out 13 trays of delayed “CFS” mail. Appellant alleged that she was reprimanded for taking too
long. The Board has held that overwork may be a compensable factor of employment.22
However, the employing establishment denied any understaffing; on the contrary, Mr. Curry
noted that his unit was actually overstaffed and that the employees simply took an inordinate
amount of time to complete a task that should have been done in one hour using six or seven
employees. Mr. Curry explained that employees had delayed the mail and that several workers
were reprimanded for those actions. Appellant was neither disciplined nor reprimanded
regarding this incident, but rather was thanked by her for staying to complete the task. The
Board finds that appellant has not established a compensable factor with respect to overwork due
to a staffing shortage.

19

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

20

Lori A. Facey, 55 ECAB 217 (2004).

21

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

22

Robert W. Wisenberger, 47 ECAB 406, 408 (1996); William P. George, 43 ECAB 1159 (1992); Georgia A.
Kennedy, 35 ECAB 1151 (1984).

6

Appellant stated that she was asked to close out in violation of her medical restrictions on
April 29, 2006. She also alleged that on May 4, 2006, Mr. Curry violated her privacy by
informing another employee that appellant was not allowed to be alone due to her restrictions.
The Board has held that being required to work beyond one’s physical limitations could
constitute a compensable employment factor if such activity was substantiated by the record.23
Other than a simple assertion to that effect, appellant has not provided any evidence to
substantiate her claim that she was asked to work in violation of her medical restrictions.
Mr. Curry denied revealing personal information about her to another manager. The Board finds
that appellant has not shown that she was required to work beyond her restrictions in this
situation.
Appellant asserted that, on September 19, 2005, Mr. Curry called her and Judy Sandoval
into his office and informed them that he was abolishing their positions and creating a new
position in violation of the union contract. She also alleged that he screamed at them. Appellant
further alleged over the next six months, Mr. Curry required them to come in at will similar to
part-time flexible employees. As noted above, disability is not covered where it results from
such factors as frustration from not being permitted to work in a particular environment or to
hold a particular position. On the other hand, the Board has held that a change in an employee’s
work shift may under certain circumstances be a factor of employment to be considered in
determining if an injury has been sustained in the performance of duty.24 Appellant’s assertion
that the proposed change in work shift was made contrary to the relevant policy relates to an
administrative function of the employing establishment. To show that an administrative action
such as the proposed change in work shift implicated a compensable employment factor
appellant would have to show that the employing establishment committed error or abuse.25
Appellant did not provide sufficient evidence of error or abuse. Mr. Curry denied screaming on
September 19, 2005 and explained the circumstances of the situation noting that two employees
were brought in to change their off days on a trial basis for three months and they were paid time
and a half for all hours off the normal schedule. Although, he noted that, a grievance was filed
for not giving consecutive days off, appellant has not shown that the trial schedule was in error
or abusive and there was no finding made pursuant to the grievance that the employing
establishment erred in the matter regarding appellant. There is no indication that Mr. Curry was
acting contrary to any policy. The Board notes that grievances and EEO complaints, by
themselves, do not establish that workplace harassment or unfair treatment occurred.26 Thus,
appellant has not established that this matter rises to the level of a compensable employment
factor under these circumstances.
Appellant alleged that, on August 22, 2005, Mr. Curry refused to allow her to take a
message from her granddaughter and advised her granddaughter that she no longer worked there.
In support of her allegation, she noted that another person had similar problems with Mr. Curry.
23

Diane C. Bernard, 45 ECAB 223, 227 (1993).

24

See Gloria Swanson, 43 ECAB 161, 165-68 (1991); Charles J. Jenkins, 40 ECAB 362, 366 (1988).

25

See Richard J. Dube, 42 ECAB 916, 920 (1991).

26

James E. Norris, 52 ECAB 93 (2000) (grievances and EEO complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred).

7

However, Mr. Curry denied making such a statement and indicated that he advised the
granddaughter that appellant was busy and that he would give her the message. He noted that
office policy was not to have personal telephone calls while working. The Board finds that
appellant has not established this allegation. The Board also finds that this is a personal matter
and would not be related to her regular or specifically assigned duties.
Appellant also alleged that harassment and discrimination by Mr. Curry contributed to
her claimed condition. To the extent that disputes and incidents alleged as constituting
harassment and discrimination by supervisors and coworkers are established as occurring and
arising from appellant’s performance of his regular duties, these could constitute employment
factors.27 However, for harassment or discrimination to give rise to a compensable disability
under the Act, there must be evidence that harassment or discrimination did in fact occur. Mere
perceptions of harassment or discrimination are not compensable under the Act.28 In the present
case, the employing establishment denied that appellant was subjected to harassment or
discrimination and she has not submitted sufficient evidence to establish that she was generally
harassed or discriminated against by her supervisor.29
Appellant alleged that Mr. Curry made verbal and physical threats. They included
feeling threatened by Mr. Curry’s comments of “I do n[o]t get mad I get even,” on May 2, 2005,
when she alleged that he became upset that a window clerk used leave to pack his truck for a
move. However, Mr. Curry denied this noting that this clerk did not even move from the area in
that month and that he rather said, “I do n[o]t get mad. It is not worth it.” While appellant
submitted a statement from Ms. Sandoval dated May 9, 2006, in which she alleged that she had
heard him make this remark, she did not indicate when she heard it or if it was made toward
appellant. Although the Board has recognized the compensability of verbal abuse in certain
circumstances, this does not imply that every statement uttered in the workplace will give rise to
coverage under the Act.30 Appellant has not shown how such an isolated comment would rise to
the level of verbal abuse or otherwise fall within the coverage of the Act.31
Appellant stated that Mr. Curry screamed and yelled at her on numerous occasions. She
also alleged that he would shake his finger at her and got up in her face in front of customers and
behind closed doors. Appellant listed instances on May 10, 21, 23 and 24, 2005 when she
scanned the same express mail package twice. She also referred to instances on June 27, 2005
and June 6, 2006. Appellant stated that Mr. Curry berated her in front of a customer and put his
face within six inches of her while yelling. While she provided statements from her coworkers,
Pauline Ulimasso, Janet Fuller, Ms. Sandoval and Ron Velasquez, who generally supported that
27

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

28

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

29

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
30

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

31

See, e.g., Alfred Arts, 45 ECAB 530, 543-44 (1994) (finding that an employee’s reaction to coworkers’
comments such as “you might be able to do something useful” and “here he comes” was self-generated and
stemmed from general job dissatisfaction).

8

Mr. Curry’s behavior made them feel uncomfortable or that they believed his actions created a
hostile work environment, they were generally vague.32 These statements do not sufficiently
describe what was observed on specific dates with regard to Mr. Curry’s interactions with
appellant.
Mr. Curry denied screaming at appellant on May 10, 2005 for taking too long although he
noted that she took longer with customers than did other clerks. Regarding the dates of May 21,
23 and 24, 2005, he confirmed that appellant scanned express mail twice and caused an error, but
denied that he yelled or acted improperly. Mr. Curry also denied that he screamed at appellant
on June 6 or 27, 2005. Appellant has not substantiated her allegation in this regard.
Appellant further stated that, on August 23, 2005, Mr. Curry approached her shaking his
fist and shouting because she gave his telephone number to a customer. Mr. Curry confirmed
discussing the matter with appellant but denied approaching her, shaking his fist or yelling. He
advised that he had been out of the office for two weeks and came back to many calls from irate
customers who had left messages on his telephone but had not received a return call. Appellant
has not supported her allegation in this regard. Likewise, she asserted that, on September 13,
2006, Mr. Curry screamed “no one likes you. No one will work with you.” Mr. Curry denied
screaming at appellant and there is no other evidence confirming that this occurred. Appellant
has not supported her allegation in this regard.
Appellant also alleged harassment or abusive behavior in the handling of an incident on
July 5, 2006. Regarding the July 5, 2006 incident, she stated that Mr. Curry “brought his face
within 12 inches of mine” and began yelling for two minutes about her handling of a customer.
Appellant noted that a customer overheard Mr. Curry and asked, “What is the matter? Are you
ok?” She stated that his “behavior was so physically threatening I was afraid he would hit me. I
hurried away, tripped over some buckets and hit my knee bruising it badly.” After Mr. Curry
continued yelling and following her, appellant stated that he ordered her to clock out and the next
day she was given a letter threatening her with removal.33 Appellant stated that, after filing her
July 7, 2006 workers’ compensation claim, Mr. Curry told her that he would trump up
allegations against her and would protect himself. She alleged that she then received a notice
placing her off duty without pay and which directed her to appear for a due process meeting on
July 7, 2006.34
In support of her assertion, appellant noted that Mr. Miller, a customer, indicated that he
heard the postmaster screaming at her on that date. Although Mr. Curry denied that he screamed
at appellant, the evidence refutes his denial. Appellant also provided a copy of an EEO decision,
dated December 4, 2007. The administrative judge found that Mr. Curry’s actions, which
included raising his voice, bringing his face to within 12 inches of hers and yelling at her, were
sufficiently severe or pervasive to alter the condition of her employment and or create an abusive
working environment. He found that appellant had established a prima facie case for a hostile
32

See William P. George, 43 ECAB 1159, 1167 (1992).

33

Appellant provided a copy of the letter.

34

Appellant provided a copy of the notice.

9

work environment related to her sex and age based on the incidents surrounding the July 5, 2006
event.
This evidence is sufficient to support the credibility of the allegations surrounding the
June 5, 2006 incident and to support a finding of a compensable factor. It is well established
that, while the findings of other federal agencies are not dispositive with regard to questions
arising under the Act, such evidence may be given weight by the Office and the Board.35
Although the EEO decision does not lend any credibility to the overall appellant’s general
allegations of an abusive workplace, the decision regarding this particular incident is persuasive.
It is appellant’s burden to prove that harassment by Mr. Curry did in fact occur. Although
heartily denied by the employing establishment, appellant has met her burden that this incident
did occur and did arise from appellant’s performance of her regular duties.
The Board has held that allegations, alone, by a claimant are insufficient to establish a
factual basis for an emotional condition claim but must be substantiated by the evidence.36 Mere
perceptions and feelings of harassment or discrimination will not support an award of
compensation. The claimant must establish such allegations with probative and reliable
evidence.37 The Office, in its denial of modification decision, dated March 14, 2008, addressed
the EEO decision in this manner:
“Your attorney submitted a second statement, dated February 1, 2008, in which he
discusses the response from the employing agency. In this statement he argues
that based on the EEOC determination, the weight of evidence shifts in favor of
you, because it provides strong evidence of error or abuse on the part of the
[a]gency. Upon review of these transcripts it is found that while they support the
findings of the EEOC, they do not specifically verify your previous allegations
previously identified with supporting evidence.”
While the Office is correct that the decision did not factually support the overall
harassment charges appellant alleged over a long period of time, the Board disagrees with the
Office and finds that these findings do support appellant’s factual allegations of harassment
surrounding the one event on July 5, 2006. Appellant’s allegations of harassment surrounding
that incident, substantiated by the witness statement and the finding of a hostile work
environment by the EEO decision, constitutes substantial evidence of harassment by Mr. Curry.
Thus, appellant has identified a compensable factor with respect to the July 5, 2006
incident. As she has implicated a compensable employment factor, the Office must base its
35

See Pamela Casey, 57 ECAB 260, 264 (2005); Michael A. Deas, 53 ECAB 208 (2001).

36

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991); and
Ruthie M. Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to
determine whether or not the evidence established such allegations).
37

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (it was found that the employee failed to establish the incidents or
actions characterized as harassment ).

10

decision on an analysis of the medical evidence. As the Office found that there were no
compensable employment factors, it did not analyze or develop the medical evidence. The case
will be remanded to the Office for this purpose.38 After such further development as deemed
necessary, it should issue an appropriate decision on this matter.
CONCLUSION
The Board finds that appellant has identified a compensable factor of employment with
respect to incident of July 5, 2006. The Board will remand for further development with respect
to that allegation. The Board affirms the Office’s decision finding no compensable factors on all
other allegations.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside and remanded in part. Upon
remand, the Office will combine the case files of case file numbers xxxxxx928 and xxxxxx750
and, following further development consistent with this decision, render an appropriate decision.
Issued: April 20, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

38

See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, CASTLE SHANNON
STATION, Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1033
Issued: July 23, 2020

Case Submitted on the Record

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

JURISDICTION
On April 10, 2019 appellant, through counsel, filed a timely appeal from a February 22,
2019 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

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.

FACTUAL HISTORY
On August 27, 2014 appellant, then a 29-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 25, 2014 she twisted her right ankle when she
attempted to open a locked gate and fell against it while delivering mail in the performance of
duty. She did not stop work, but began working in a light-duty position without wage loss. OWCP
accepted appellant’s claim for right ankle sprain (right spring ligament).
Appellant was treated by Dr. Alex J. Kline, a Board-certified orthopedist, who noted in a
May 4, 2015 letter that appellant’s right ankle/foot condition had reached maximum medical
improvement (MMI). In a May 5, 2015 narrative report, Dr. Kline indicated that the findings on
physical examination of the right ankle/foot revealed slight pes planus (symmetric to the
contralateral side), no tenderness over the posterior tibial tendon and spring ligament, normal skin
examination, intact strength upon right ankle range of motion (ROM), and grossly intact
neurovascular examination. He released appellant to work her normal work hours.3
On January 11, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated February 16, 2016, OWCP requested that appellant submit a
report from her attending physician which contained a rating of permanent impairment in
accordance with the standards of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides).4 It advised her that, if her physician
was unable or unwilling to provide the required report, it would refer her to a second opinion
physician. OWCP afforded appellant 30 days to submit the requested evidence.
Appellant did not submit the requested evidence within the afforded period and on
August 31, 2016 OWCP referred her, along with a statement of accepted facts (SOAF), to
Dr. Victoria M. Langa, a Board-certified orthopedic surgeon, for a second opinion examination
and rating of permanent impairment utilizing the sixth edition of the A.M.A., Guides.
In a September 16, 2016 report, Dr. Langa discussed appellant’s factual and medical
history and summarized the medical reports of record. She provided findings on physical
examination of the right ankle/foot which included lack of swelling or tenderness to palpation, 5/5
muscle strength, and full ROM of the ankle. Dr. Langa noted that appellant reported slightly
altered sensation to touch throughout the right great toe, but she indicated that sensation was
otherwise intact throughout the ankle/foot. She diagnosed status post right ankle sprain,5 and mild
altered sensation of the right great toe (associated with the superficial peroneal nerve). Dr. Langa
utilized the diagnosis-based impairment (DBI) rating method found at Table 16-12 (Peripheral
Nerve Impairment) of the sixth edition of the A.M.A., Guides, beginning at page 534. She noted
that appellant’s superficial peroneal sensory deficit at page 535, represented a class of diagnosis
(CDX) at the class 1 level with a default value of three percent permanent impairment of the right
lower extremity. Dr. Langa advised that appellant had a grade modifier for functional history
3

On June 2, 2015 appellant returned to full-duty work without restrictions.

4

A.M.A., Guides (6th ed. 2009).

5
In connection with this diagnosis, Dr. Langa indicated that a magnetic resonance imaging (MRI) scan showed a
partially torn anterior talofibular ligament and mild grade II sprain of the spring ligament.

2

(GMFH) of zero, and indicated that the grade modifier for physical examination (GMPE) and the
grade modifier for clinical studies (GMCS) were not applicable. She reported that application of
the net adjustment formula required movement one space to the left of the default value on
Table 16-2, and concluded that appellant had two percent permanent impairment of the right lower
extremity. Dr. Langa noted that appellant was at MMI on the date of her examination.
On February 15, 2018 OWCP referred appellant’s case to Dr. Herbert White, Jr., a Boardcertified orthopedic surgeon serving as a district medical adviser (DMA), and requested that he
review and comment on Dr. Langa’s permanent impairment rating.
In a February 17, 2018 report, the DMA reviewed Dr. Langa’s September 16, 2016 report
and explained his disagreement with her impairment rating. He indicated that Dr. Langa calculated
a right lower extremity permanent impairment of two percent for deficit of appellant’s right
superficial peroneal sensory nerve because she found decreased sensation in her right great toe.
However, the DMA noted that, at the time of MMI, Dr. Kline indicated that appellant had a grossly
intact neurovascular examination with no findings of decreased sensation to the right great toe. He
further advised that the sixth edition of the A.M.A., Guides provides that, if multiple previous
range of motion evaluations have been documented and there is inconsistency in the rating class
between the findings of the two observers, the results are “considered invalid and cannot be used
in the impairment rating.” The DMA noted that the inconsistent findings were the grossly intact
neurovascular examination reported by Dr. Kline and the decreased right great toe sensation
observed by Dr. Langa. He applied the DBI rating method of Table 16-2 (Foot and Ankle Regional
Grid) at page 501 and noted that, under a diagnosis category of strain/tendinitis/history of ruptured
tendon, all other tendons, appellant’s condition fell under a CDX of class 1 (based on radiographic
findings) and warranted a default value of one percent permanent impairment. The DMA indicated
that appellant had a GMFH of zero (due to normal gait) and a GMPE of zero (due to normal
examination), and advised that the GMCS was excluded. Applying the net adjustment formula,
he found that appellant had zero percent permanent impairment of the right lower extremity. The
DMA indicated that appellant had reached MMI on May 5, 2016.
By decision dated March 21, 2018, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
a scheduled member or function of the body. It found that the weight of the medical evidence
rested with the opinion of the DMA.
On March 30, 2018 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
Prior to a hearing being held, OWCP’s hearing representative conducted a preliminary
review and issued a June 7, 2018 decision which vacated the March 21, 2018 decision and
remanded the case to OWCP for further development of the medical evidence. She found a conflict
in the medical opinion evidence between Dr. Langa, OWCP’s referral physician, and Dr. Kline,
appellant’s attending physician, with respect to the permanent impairment of appellant’s right
lower extremity. The hearing representative explained that there was a difference in their
examination findings regarding sensory loss in appellant’s right lower extremity. Shedirected
OWCP to refer appellant to an impartial medical specialist in order to resolve the conflict in the
medical opinion evidence.

3

On June 12, 2018 OWCP referred appellant to Dr. Victor J. Thomas, a Board-certified
orthopedic surgeon, for an impartial medical examination to resolve the conflict in the medical
opinion evidence with respect to the permanent impairment of appellant’s right lower extremity.
It requested that Dr. Thomas provide a permanent impairment rating of appellant’s right lower
extremity under the sixth edition of the A.M.A., Guides.
In a July 16, 2018 report, Dr. Thomas reviewed a SOAF and discussed appellant’s factual
and medical history, including the previous findings for the accepted right ankle strain. He
conducted a physical examination of her right ankle and found normal appearance without
effusion, swelling, or tenderness, stable medial and lateral ligament complexes, full ROM, and
intact strength. There was no atrophy of the right lower extremity and sensation to light touch was
decreased over the dorsum of the great toe. Dr. Thomas performed an impairment rating
evaluation utilizing the DBI rating method of Table 16-2 of the sixth edition of the A.M.A., Guides.
Making reference to the accepted ligament injury to appellant’s right ankle (CDX), he found that
appellant had no objective abnormality and determined that her condition would fall under a class
0 with zero percent permanent impairment of the right lower extremity. Dr. Thomas noted that
appellant complained of decreased sensation on the dorsum of her right great toe, but indicated
that this finding was not supported by the medical records. He advised that, even assuming the
decreased sensation on the right great toe was related to the accepted employment injury, it would
be considered a minimal deficit which fell under class 0 for zero percent permanent impairment of
the right lower extremity. Dr. Thomas further indicated that, utilizing the ROM impairment rating
method pursuant to Table 16-25 on page 550, there was no ROM deficit of the right ankle. He
opined that appellant had recovered from her work injuries and reached MMI on July 5, 2015.
Dr. Thomas concluded that she had zero percent permanent impairment of her right lower
extremity under the sixth edition of the A.M.A., Guides.
By decision dated August 29, 2018, OWCP denied appellant’s schedule award claim. It
based its determination on the opinion of Dr. Thomas, the impartial medical specialist, who
determined that appellant sustained zero percent impairment of the right lower extremity.
On September 4, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
January 16, 2019, counsel argued that Dr. Thomas’ opinion was not well rationalized.
By decision dated February 22, 2019, OWCP’s hearing representative affirmed the
August 29, 2018 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulation,7 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss, or loss of use, of scheduled members or functions of the body. However, FECA does
not specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

4

as the uniform standard applicable to all claimants.8 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 In determining impairment for the lower extremities under the sixth edition
of the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the ankle, the relevant portion of the leg for the present
case, reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501.11
After the CDX is determined from the Foot and Ankle Regional Grid (including identification of
a default grade value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS.
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under
Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.13
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.14
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
Preliminarily, the Board finds that OWCP improperly determined that a conflict in the
medical opinion evidence existed between Dr. Langa, OWCP’s referral physician, and Dr. Kline,
an attending physician, regarding the extent of the permanent impairment of appellant’s right lower
extremity due to her accepted employment condition, right ankle sprain (right spring ligament).
There was no conflict in the medical opinion evidence regarding the extent of appellant’s
permanent impairment. Although Dr. Langa submitted a September 16, 2016 report containing an
8

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
10
A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
11

See A.M.A., Guides 501-08, Table 16-2.

12

Id. at 515-22.

13

Id. at 23-28.

14

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

15

C.H., Docket No. 18-1065 (issued November 29, 2018).

5

opinion on permanent impairment under the sixth edition of the A.M.A., Guides, the case record
does not contain a permanent impairment rating of Dr. Kline. Due to this lack of a conflict in the
medical opinion evidence regarding permanent impairment, Dr. Thomas, on whose opinion
OWCP relied, actually served as an OWCP referral physician rather than an impartial medical
specialist.16
The Board finds that the weight of the medical evidence with respect to permanent
impairment rests with the well-rationalized opinion of Dr. Thomas, OWCP’s referral physician.
In his July 16, 2018 report, Dr. Thomas discussed appellant’s factual and medical history and
provided examination findings of the right ankle, noting no effusion, swelling, or tenderness, full
ROM without pain, intact strength, and stable medial and lateral ligament complexes. He also
noted full ROM of all toes of the right foot, and reported decreased sensation to light touch over
the dorsum of the right great toe. Dr. Thomas advised that there was no clinical manifestation on
examination with respect to the accepted right ankle condition, and indicated that appellant had
fully recovered from the condition with no employment-related impairment. Utilizing the DBI
rating method of Table 16-2 of the sixth edition of the A.M.A., Guides, he performed a proper
impairment rating for the right lower extremity.17 Making reference to the accepted ligament
injury to appellant’s right ankle, Dr. Thomas correctly determined that appellant had no objective
abnormality and fell under class 0 for zero permanent impairment of the right lower extremity.18
In reaching his permanent impairment rating, Dr. Thomas noted that appellant complained
of decreased sensation on the dorsum of her right great toe, but explained that this finding was not
supported by the medical records. He further opined that, even assuming the decreased sensation
on the right great toe was related to accepted employment injury, it would be considered a minimal
deficit which fell under class 0 for zero percent permanent impairment of the right lower extremity.
The Board notes that Dr. Thomas provided detailed examination findings and properly found that
there was no clinical manifestation of appellant’s accepted condition on which permanent
impairment could be based. Dr. Thomas correctly concluded that, based on the lack of objective
findings, the accepted employment condition caused no permanent impairment. The Board finds
that his medical opinion is well rationalized and based upon a proper factual and medical
background and thereby is entitled to the weight of the medical evidence with respect to appellant’s
permanent impairment.19
As Dr. Thomas’s opinion represents the weight of the medical evidence with respect to
permanent impairment, appellant has not established permanent impairment of a scheduled
member or function of the body, warranting a schedule award. OWCP properly relied on
Dr. Thomas’ opinion to find that appellant had no permanent impairment. The Board finds that
16

See R.H., Docket No. 17-1477 (issued March 14, 2018) (finding that, due to the lack of a conflict in the medical
evidence at the time of the referral to the putative impartial medical specialist, the physician actually served as an
OWCP referral physician rather than an impartial medical specialist).
17

A.M.A., Guides 501-08, Table 16-2.

18

Dr. Thomas opined that appellant reached MMI by July 5, 2015. He also noted that, utilizing the ROM
impairment rating method pursuant to Table 16-25, there was no ROM deficit of the right ankle. The Board notes that
this comment is superfluous to the underlying issue of this case as Table 16-2 does not allow for application of the
ROM impairment rating method for appellant’s accepted condition. See id.
19

See E.H., Docket No. 19-1569 (issued April 2, 2020).

6

OWCP’s permanent impairment determination must be affirmed, as modified to reflect that
Dr. Thomas served as an OWCP referral physician rather than an impartial medical specialist.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 22, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: July 23, 2020
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, OH, Employer
__________________________________________

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

Docket No. 12-806
Issued: August 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 29, 2012 appellant filed a timely appeal from the December 13, 2011
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for further review of the merits of her claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this nonmerit decision.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. §§ 8101-8193.

The most recent merit decision of record is the January 2, 2001 decision of the Board, affirming the denial of
appellant’s recurrence of disability claim. See Docket No. 99-2541 (issued January 2, 2001).

FACTUAL HISTORY
This case has previously been before the Board. In the most recent appeal,3 the Board
issued a decision on December 7, 2010 affirming OWCP’s January 26, 2010 decision which
denied appellant’s request for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).4 OWCP had found that the argument submitted by appellant in support of her
reconsideration request either duplicated or was similar to argument previously considered by
OWCP.5 The facts of the case are set forth in the Board’s prior decisions and are incorporated
herein by reference.
In May 2011, appellant requested reconsideration of her claim for recurrence of
disability. In an undated letter received by OWCP on May 10, 2011, she argued that OWCP
impermissibly denied her claim under the mistaken assumption that she was terminated from the
employing establishment on June 2, 1993 when in fact she was terminated on June 3, 1993.
Appellant asserted that OWCP indicated, in a June 6, 2008 decision, that she was terminated
from the employing establishment on June 2, 1993 and that her claim should be denied because
the factual evidence of the case showed that her work stoppage was a result of being terminated
on that date. She claimed that, because her work stoppage occurred on June 2, 1993 and her
termination occurred on June 3, 1993, her work stoppage could not have been due to the
termination which occurred a day later. Appellant discussed the medical evidence of record,
including reports of Dr. Ted E. Barber, an attending Board-certified neurologist, and asserted
that the reports established her claim for a recurrence of disability.6
In a December 13, 2011 decision, OWCP denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

3

Docket No. 10-1111 (issued December 7, 2010).

4

On April 7, 1993 appellant, a letter carrier, sustained a work-related acute lumbosacral strain and right knee
strain. She stopped her limited-duty work on June 2, 1993 and was terminated from the employing establishment
effective June 3, 1993. Appellant alleged that she sustained a recurrence of disability on June 3, 1993 due to her
April 7, 1993 work injury. In several decisions, OWCP denied her claim on the grounds that she did not submit
sufficient medical evidence to establish a work-related recurrence of disability on or after June 3, 1993.
5

In October 2, 1998 and January 2, 2001 decisions, the Board affirmed OWCP’s finding that appellant had not
met her burden of proof to show that she sustained a recurrence of disability on or after June 3, 1993 due to her
April 7, 1993 employment injury. Docket No. 97-63 (issued October 2, 1998); Docket No. 99-2541 (issued
January 2, 2001). In later decisions, the Board found that OWCP had properly denied appellant’s multiple requests
for further review of the merits of her claim.
6

Appellant also submitted a number of reports which had previously been submitted to OWCP, including
August 20, 2004 and August 18, 2008 reports of Dr. Barber and an undated disability certificate covering the period
June 2 to 21, 1993.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.9 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.10 The Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case
record11 and the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.12 While a reopening of a case may be
predicated solely on a legal premise not previously considered, such reopening is not required
where the legal contention does not have a reasonable color of validity.13
ANALYSIS
On April 7, 1993 appellant sustained a work-related acute lumbosacral strain and right
knee strain. She stopped work on June 2, 1993 and alleged that she sustained a recurrence of
disability on June 3, 1993 due to her April 7, 1993 employment injury. OWCP denied
appellant’s claim on the grounds that she did not submit sufficient medical evidence to establish
that she sustained a work-related recurrence of disability on or after June 3, 1993. In a
December 13, 2011 decision, it denied her request for further review of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).
In support of her reconsideration request, appellant argued that OWCP impermissibly
denied her claim under the mistaken assumption that she was terminated from the employing
establishment on June 2, 1993 when in fact she was terminated on June 3, 1993. She asserted
that it denied her claim on the basis that her work stoppage was a result of being terminated on
June 3, 1993. Appellant claimed that, because her work stoppage actually occurred on June 2,

7

Supra note 1. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment
of compensation at anytime on her own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.607(a).

10

Id. at C.F.R. § 10.608(b).

11

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

12

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

John F. Critz, 44 ECAB 788, 794 (1993).

3

1993 and her termination from the employing establishment occurred on June 3, 1993, her work
stoppage could not have been due to the termination which occurred a day later.
The Board finds that the submission of this argument does not require reopening of
appellant’s claim for further review of the merits because this argument does not address the
main issue of the present case.14 Appellant argued that the basis of OWCP’s denial of her claim
for recurrence of disability was its mistaken assumption that she stopped work due to the
termination of her employment. However, the basis for OWCP’s denial of her claim was its
finding that she did not submit sufficient medical evidence to establish that she sustained a
work-related recurrence of disability on or after June 3, 1993. The main issue of the present case
is medical in nature and would generally be resolved by the submission of probative medical
evidence. It is not relevant when she stopped work. The question is whether new medical
evidence demonstrates any disabling condition. Appellant did not submit any new and relevant
medical evidence in connection with her reconsideration request.15
Appellant has not established that OWCP improperly denied her request for further
review of the merits of its prior decisions under section 8128(a) of FECA, because the evidence
and argument she submitted did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
constitute relevant and pertinent new evidence not previously considered by OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

14

See supra note 13.

15

On appeal, appellant argued that the nature of her medical condition established that she sustained a recurrence
of disability as alleged. However, she did not submit new and relevant medical evidence in support of her
reconsideration request. Appellant submitted a number of reports which had previously been submitted to OWCP,
including August 20, 2004 and August 18, 2008 reports of Dr. Barber, an attending Board-certified neurologist, and
an undated disability certificate covering the period June 2 to 21, 1993. The submission of these documents would
not require reopening of appellant’s claim as, due to their prior submission, they do not constitute new evidence.
See supra note 11.

4

ORDER
IT IS HEREBY ORDERED THAT the December 13, 2011 nonmerit decision of the
Office of Workers’ Compensation Programs is affirmed.
Issued: August 6, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 19-1390
Issued: May 7, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 10, 2019 appellant filed a timely appeal from March 26 and April 11, 2019 merit
decisions 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.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish intermittent
disability from work for the period September 5 through October 22, 2018 causally related to her
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 11, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

accepted December 28, 2014 employment injury; and (2) whether OWCP properly denied mileage
reimbursement for medical treatment on December 22, 2018.
FACTUAL HISTORY
On December 29, 2014 appellant filed a traumatic injury claim (Form CA-1) alleging that
the previous day, she sustained a chest sprain while in the performance of duty. She clarified in a
January 20, 2015 statement that the claimed incident of December 28, 2014 involved a motor
vehicle incident. On March 30, 2015 OWCP accepted appellant’s claim for concussion, neck
sprain, chest wall contusion, bilateral knee contusion, back contusion, and lumbar sprain.
Appellant stopped work on December 29, 2014 and returned to modified-duty work for four hours
per day on August 5, 2015. On February 8, 2016 she returned to full-duty work. OWCP paid
appellant wage-loss compensation for intermittent disability on the supplemental rolls
commencing February 12, 2015.
In a report dated September 17, 2018, Dr. Victoria Do, a Board-certified family
practitioner, examined appellant for complaints of neck pain. She related that appellant attributed
the neck pain to a motor vehicle incident in 2014, which had returned three weeks prior. On
examination of the upper extremities, Dr. Do noted C5 decreased sensation of the outer upper arm
and C6 decreased sensation of the radial forearm, thumb, and index finger. On examination of the
cervical spine, she noted tenderness to palpation and reduced range of motion. Dr. Do diagnosed
prolapsed cervical intervertebral disc related to a known disc herniation in the cervical spine,
cervical radiculopathy, and cervicalgia following a motor vehicle incident at work in
December 2014. She referred appellant for physical therapy. In an accompanying work status
report of even date, Dr. Do recommended work restrictions of no driving, lifting or carrying of
objects over 10 pounds.
Appellant submitted physical therapy notes dated September 28 and October 10, 15, 17,
and 22, 2018, in which Sarah R. Davies, a physical therapist, indicated that appellant had received
treatment on those dates for cervical conditions.
On October 12, 2018 OWCP authorized physical therapy treatment from September 28
through November 9, 2018.
On October 24, 2018 appellant filed a claim for wage-loss compensation (Form CA-7) for
leave without pay from September 5 to October 22, 2018. In an attached Time Analysis Form
(Form CA-7a), she claimed compensation for eight hours of leave without pay from September 5
to 8, 2018. The entries on September 7 and 8, 2018 were crossed out, with the explanation she
was not scheduled on those days. On October 5, 10, 12, 15, and 17, 2018 appellant worked partial
days and claimed varying periods of leave on those days, noting the reason for leave use was
“physical therapy.” The entry for October 8, 2018 was crossed out, with the explanation “NS Day”
indicating that she was not scheduled to work on that day. Appellant claimed compensation for
eight hours of leave without pay on October 3, 2018 and from October 18 to 20, 2018.
In a work status report dated October 16, 2018, Dr. Do continued to recommend work
restrictions of no driving, lifting or carrying of objects over 10 pounds. In a medical report of even

2

date, she noted that appellant’s neck pain had not improved since the last visit and that appellant
had begun physical therapy.
In a development letter dated November 2, 2018, OWCP requested additional medical
evidence establishing appellant’s disability from work during the claimed period. Appellant was
afforded 30 days to submit the necessary evidence.
OWCP received a magnetic resonance imaging (MRI) scan taken on October 24, 2018 of
appellant’s cervical spine which demonstrated central disc herniations at C4-5 and C5-6 measuring
two millimeters, as well as loss of normal lordosis, which might be related to positioning and/or
spasm.
In a November 14, 2018 report, Dr. Do noted that appellant had been experiencing pain
since November 25, 2017, requiring days off work or leaving early. Appellant sought treatment
with a chiropractor for her pain, which made symptoms worse. Dr. Do stated that appellant had
completed physical therapy with no improvement to pain. She diagnosed cervical disc
displacement, cervical radiculopathy, and cervicalgia.
OWCP continued to receive progress reports from Dr. Do.
A December 28, 2018 appointment list from Select Physical Therapy indicated that
appellant had received physical therapy treatments on October 22, 24, and 31, and November 2
and 6, 2018.
In a development letter dated January 11, 2019, OWCP noted that it appeared appellant
was claiming a recurrence of disability. It informed her of the deficiencies of her recurrence claim,
advised her of the type evidence needed, and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
By decision dated January 22, 2019, OWCP denied appellant’s wage-loss compensation
claim for the period September 5 through October 22, 2018, finding that the medical evidence of
record was insufficient to establish disability during the claimed period due to the accepted
employment injury.
By letter dated February 12, 2019, appellant informed OWCP that she was not receiving
wage-loss compensation, even though her claim was not closed. She explained that she did not
receive medical treatment when she felt better, but that her pain had returned when she began a
mounted route. Appellant related that physical therapy relieved her cervical pain.
OWCP continued to receive progress reports from Dr. Do.
A March 11, 2019 physical therapy note related that appellant had been seen on October 5,
8, 10, 12, and 15, 2018.
By decision dated March 26, 2019, OWCP again denied appellant’s wage-loss
compensation claim commencing September 5, 2018 and continuing, finding that the medical
evidence of record was insufficient to establish disability due to the accepted employment injury.

3

An April 8, 2019 medical authorization record indicates that travel authorization for 126
miles was requested for a December 22, 2018 date of service.
By decision dated April 11, 2019, OWCP denied appellant’s request for 126 miles of travel
reimbursement for December 22, 2018 finding that there was no medical evidence of record
supporting that she received medical treatment for a work-related condition on that date.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the preponderance of the evidence.3 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.5
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.6 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.7
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has established entitlement to up to four hours of wage-loss
compensation on October 5, 10, 12, 15, and 17, 2018. The Board further finds that she has not
met her burden of proof to establish disability for the remaining claimed disability from
September 5 through October 22, 2018 causally related to her December 28, 2014 employment
injury.

3

See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

4

Id.

5

20 C.F.R. § 10.5(f); B.O., supra note 3; N.M., Docket No. 18-0939 (issued December 6, 2018).

6

Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018).

7

Id.

8

A.W., Docket No. 18-0589 (issued May 14, 2019).

4

Based upon Dr. Do’s referral for physical therapy, OWCP authorized appellant’s physical
therapy treatments from September 28 through November 9, 2018. During the claimed dates of
disability wage loss, the record reflects that appellant underwent physical therapy treatments on
October 5, 10, 12, 15, and 17, 2018.
The Board has long recognized that, under section 8103 of FECA, payment of expenses
incidental to the securing of medical services encompasses payment for loss of wages incurred
while obtaining medical treatment.9 An employee is entitled to disability compensation for loss
of wages incidental to treatment for an employment injury.10 OWCP’s procedures provide that, in
general, no more than four hours of compensation or continuation of pay should be allowed for
routine medical appointments.11 Accordingly, the Board finds that appellant is entitled to up to
four hours of compensation or attending physical therapy appointments on October 5, 10, 12, 15,
and 17, 2018 due to her accepted employment injury.
Regarding the remaining claimed disability from September 5 through October 22, 2018,
the Board finds that appellant has not submitted rationalized medical evidence explaining how the
accepted employment injury caused her intermittent disability from work.
On September 17, 2018 Dr. Do diagnosed prolapsed cervical intervertebral disc, cervical
radiculopathy, and cervicalgia related to a known disc herniation in the cervical spine following a
motor vehicle incident at work in December 2014. She continued to offer these diagnoses in her
subsequent progress reports. However, Dr. Do did not provide medical rationale explaining why
appellant’s current conditions were due to the accepted December 28, 2014 employment injury.12
She also related in her November 14, 2018 report that appellant’s neck pain had worsened since
November 25, 2017, requiring days off from work. In so far as Dr. Do related that appellant’s
cervicalgia and worsening pain complaints were due to her accepted employment injury, she failed
to provide rationale explaining how objective medical findings of her accepted conditions, rather
than mere recitation of appellant’s complaints caused her disability.13
While Dr. Do indicated that appellant had work restrictions as of September 17, 2018,
which included driving, lifting, and carrying restrictions, she did not provide objective findings
related to appellant’s accepted employment conditions that explained why appellant required these
work restrictions.14 Her reports, are therefore insufficient to establish that appellant sought

9

See B.W., Docket No. 19-0049 (issued April 25, 2019).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013); see also B.W., id.
11

Id.

12

See L.S., Docket No. 18-0264 (issued January 28, 2020); J.M., Docket No. 18-0847 (issued December 5, 2019).

13

S.M., Docket No. 19-0658 (issued March 17, 2020); B.R., Docket No. 18-0339 (issued January 24, 2019).

14

K.D., Docket No. 19-0628 (issued November 5, 2019); A.T., Docket No. 19-0410 (issued August 13, 2019).

5

medical treatment from Dr. Do or was disabled from work during the claimed period due to
appellant’s accepted employment injury.15
Appellant also submitted a diagnostic MRI scan report dated October 24, 2018. However,
this diagnostic study lacks probative value, as it does not address whether the accepted
employment injury resulted in her period of disability on specific dates.16
The Board finds that appellant has not provided sufficiently rationalized medical opinion
evidence to establish that she was disabled from work for the remainder of the period September 5
through October 22, 2018 causally related to the accepted employment injury. Thus, appellant has
not met her burden of proof.
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.
LEGAL PRECEDENT -- ISSUE 2
OWCP regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances, or supplies.17 To determine a reasonable travel distance, it will consider the availability
of services, the employee’s condition, and the means of transportation. Effective August 29, 2011,
the most recent regulations provide that a round-trip distance of up to 100 miles is considered a
reasonable distance to travel.18 If round-trip travel of more than 100 miles is contemplated, or air
transportation or overnight accommodations will be needed, the employee must submit a written
request to OWCP for prior authorization with information describing the circumstances and
necessity for such travel expenses. OWCP will approve the request if it determines that the travel
expenses are reasonable and necessary and are related to obtaining authorized medical services,
appliances, or supplies.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for travel reimbursement
on December 22, 2018.
OWCP received a request for reimbursement of 126 miles of travel on December 22, 2018.
Since the request for reimbursement exceeded the 100 mile limit, appellant was required to submit
a request to OWCP for prior travel authorization, with information describing the circumstances
15

S.M., supra note 13; see also S.K., Docket No. 18-1537 (issued June 20, 2019).

16

F.S., Docket No. 19-0205 (issued June 19, 2019).

17

20 C.F.R. § 10.315(a).

18

Id.

19

Id. at § 10.315(b).

6

and necessity for the travel expense.20 OWCP did not receive such a request for prior authorization
and the record does not substantiate any medical treatment on December 22, 2018. The Board
therefore finds that OWCP properly denied appellant’s request for travel reimbursement.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish entitlement to up
to four hours of wage-loss compensation for time lost due to physical therapy appointments on
October 5, 10, 12, 15, and 17, 2018. On return of the case record OWCP shall authorize wageloss compensation consistent with this decision of the Board. The Board further finds, however,
that appellant has not met her burden of proof to establish disability for the remaining claimed
disability from September 5 to October 22, 2018 causally related to her accepted December 28,
2014 employment injury. The Board also finds that OWCP did not abuse its discretion by denying
her request for travel reimbursement for 126 miles on December 22, 2018.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified. The April 11, 2019 decision is
affirmed.
Issued: May 7, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

20

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-360
Issued: September 16, 2010

Case Submitted on the Record

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

JURISDICTION
On November 20, 2009 appellant, through her attorney, filed a timely appeal from an
August 14, 2009 merit decision of the Office of Workers’ Compensation Programs. 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 a four percent right arm permanent
impairment and a three percent left arm impairment.
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 In a February 2, 2007 decision, the
Board set aside a March 3, 2006 Office decision and remanded the case for further development
regarding a schedule award for the upper extremities, finding that the medical evidence of record

1

Docket No. 06-1962 (issued February 2, 2007).

was insufficient to resolve the issue. The history of the case is contained in the Board’s prior
decision and is incorporated herein by reference.2
The Office referred appellant, medical records and a statement of accepted facts to
Dr. Kevin Handley, an orthopedic surgeon, for a second opinion examination. In a report dated
April 4, 2007, Dr. Handley provided a history and results on examination. He stated that “a
reasonable practitioner of orthopedic surgery would be hard pressed to suggest that there is any
residual impairment in the upper extremities related to a cervical strain and scalp contusion that
occurred February 3, 1986.” Dr. Handley noted that appellant had mild shoulder range of motion
limitation, but found it was not related to the employment injury. He opined that appellant had
no employment-related permanent impairment.
By decision dated May 10, 2007, the Office found appellant was not entitled to an
increased schedule award.
Appellant requested a hearing before an Office hearing
representative. By decision dated August 1, 2007, an Office hearing representative found a
conflict in the medical evidence existed. The hearing representative found that Dr. Handley did
not provide a thorough report of physical examination and offered “no greater clarity” than the
reports of appellant’s physician or the Office medical adviser, which the Board had previously
found to be of little probative value. According to the hearing representative, this resulted in a
conflict in the medical evidence.
Appellant was referred for a referee examination by Dr. Menachem Meller, a Boardcertified orthopedic surgeon. In a report dated December 6, 2007, Dr. Meller provided a history
and results on examination. He noted subjective complaints of pain with “no verifiable
orthopedic findings. He does have numerous signs of inappropriate illness behavior,
nonanatomic complaints, nonphysiologic findings.” Dr. Meller noted shoulder range of motion
limitation, indicating that it was not related to a scalp laceration or soft tissue neck injury. In
response to a question as to whether appellant had more than a seven percent permanent
impairment to the arms, he stated it was “not likely to within a reasonable degree of medical
certainty. Considering the inconsistency, I am likewise unwilling to add any additional
impairment as clearly it is not based on objective data.”
In a report dated January 23, 2008, an Office medical adviser reiterated his opinion that
appellant had a four percent right arm impairment and a three percent left arm impairment. By
decision dated February 7, 2008, the Office found appellant was not entitled to an increased
schedule award.
Appellant again requested a hearing before an Office hearing representative, which was
held on June 24, 2008. By decision dated August 11, 2008, the hearing representative remanded
the case for further development. The hearing representative found that Dr. Meller did not
identify the actual degree of permanent impairment.

2

The accepted conditions in this case are a scalp contusion and cervical strain resulting from a February 3, 1986
employment injury. In its February 2, 2007 decision, the Board found the reports from attending osteopath
Dr. Nicholas Diamond and the Office medical adviser were of little probative value.

2

The Office requested a supplemental report from Dr. Meller. In a report dated
December 9, 2008, Dr. Meller stated that the original question posed was whether appellant had
more than a total seven percent impairment and he had answered no. He further stated, “In my
opinion, there were behavioral confounders present which precluded an assignation of any
impairment which can be apportioned to the injury described.” Dr. Meller noted that the
American Medical Association, Guides to the Evaluation of Permanent Impairment indicates a
physician should consider such factors. He concluded, “Under these circumstances, it is my
opinion that he has a zero percent impairment as a result of the accident described, at least as of
the date of the evaluation performed. I was unable to attribute any of his current complaints and
visible findings to the accident described and as such there is zero percent impairment attributed
to his work injury.”
By decision dated January 22, 2009, the Office determined that appellant was not entitled
to more than the combined seven percent permanent impairment previously awarded. In a
decision dated August 14, 2009, an Office hearing representative affirmed the January 22, 2009
decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.3 It is well established that the permanent impairment must be causally related to an
accepted employment injury.4 Neither the Act nor the regulations specify the manner in which
the percentage of impairment for a schedule award shall be determined. For consistent results
and to ensure equal justice for all claimants the Office has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.5
ANALYSIS
In this case the Office had declared a conflict in the medical evidence under 5 U.S.C.
§ 8123(a). It is evident, however, that there was no conflict in the medical evidence requiring a
referee examination. The deficiencies in the reports of Dr. Diamond appellant’s attending
physician and the Office medical adviser were discussed in the Board’s prior decision. Neither
physician provided a rationalized medical opinion on the issue presented. As to the second
opinion report of Dr. Handley, the Office hearing representative noted its deficiencies in the
August 1, 2007 Office decision, noting the lack of physical findings or rationalized medical

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

Rosa Whitfield Swain, 38 ECAB 368 (1987).

5

A. George Lampo, 45 ECAB 441 (1994).

3

opinion. When medical reports are of diminished probative value, there is no conflict in the
medical evidence warranting referral to a referee physician.6
The referral to Dr. Meller was as a second opinion physician and his report may
constitute the weight of the evidence.7 In this case the Board finds that it does represent the
weight of the medical evidence. Dr. Meller opined that appellant had no employment-related
permanent impairment and he explained his opinion. The Board notes that the accepted
conditions are of the scalp and cervical spine, a shoulder condition has not been accepted as
causally related to the February 3, 2006 employment injury. Dr. Meller noted a shoulder
impairment, but indicated it was not causally related to the employment injury. He also noted a
lack of other objective findings, as well as inappropriate illness behavior. Dr. Meller provided a
rationalized medical opinion on the issue presented, based on an accurate factual and medical
background.
On appeal appellant argues that Dr. Meller disregarded his own physical examination
findings, such as shoulder range of motion and grip strength. But Dr. Meller explained his
examination findings. As noted, he indicated that shoulder limitation was not employment
related. With respect to grip strength, he felt appellant was not providing maximum effort and
the results were not valid. For the above reasons, the Board finds Dr. Meller did provide a
rationalized medical opinion and his report represents the weight of the medical evidence.
CONCLUSION
The Board finds that appellant has not established more than a four percent right arm and
three percent left arm permanent impairment.

6

See Mary L. Henninger, 52 ECAB 408 (2001).

7

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 14, 2009 is affirmed.
Issued: September 16, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 16-0353
Issued: May 2, 2016

Case Submitted on the Record

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

JURISDICTION
On December 18, 2015 appellant filed a timely appeal of a November 25, 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 to consider the merits of the case.2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
effective December 13, 2015 because she had failed to complete and return a Form CA-1032 as
requested.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the November 25, 2015 decision. The
Board’s jurisdiction however is limited to considering the evidence that was before OWCP at the time of its final
decision. The Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1);
Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On April 29, 2013 appellant, a postal service rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 18, 2013 she fell and injured her left knee while delivering a
package. She reported that she tripped over some hoses “clumped up” on the property. OWCP
accepted the claim by decision dated May 31, 2013 for left hip strain and left knee sprain.
Appellant filed a claim for recurrence of disability (Form CA-2a) effective September 5, 2014
and OWCP accepted the recurrence in a decision dated February 9, 2015. OWCP expanded the
acceptance of the claim to include the conditions of sprain of unspecified sites, localized primary
osteoarthritis, left pelvic region and thigh, as well as the previously accepted left hip strain and
left knee strain. Appellant received periodic roll payments as of September 6, 2014.
On June 2, 2015 OWCP mailed appellant a Form CA-1032 to include any earnings from
employment in the past 15 months, and/or any monetary or in-kind compensation for
volunteering. The form was sent to appellant’s last known address. The letter accompanying the
form specifically advised that appellant’s benefits would be suspended if she failed to return the
form within 30 days pursuant to 20 C.F.R. § 10.528. Appellant did not return the form within
the time allotted.
By decision dated November 25, 2015, OWCP suspended appellant’s wage-loss
compensation benefits effective December 13, 2015. The decision notified appellant that if she
completed and returned the CA-1032 form, her benefits would be restored, retroactive to the date
of their suspension.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.3
Under 20 C.F.R. § 10.528 of OWCP’s regulations, an employee in receipt of
compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work which the employee has performed in the previous 15 months. If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her
right to compensation for wage loss is suspended until OWCP receives the requested report.4 At
that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.5
ANALYSIS
On June 2, 2015 OWCP provided appellant with a Form CA-1032. It notified her that
federal regulations required her to complete the form and answer all questions about her earnings
3

5 U.S.C. § 8106(b).

4

Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius Beverly, 53 ECAB 189 (1997).

5

M.W., Docket No. 15-507 (issued June 18, 2015); R.R., Docket No. 13-528 (issued June 13, 2013).

2

and employment activities for the previous 15 months.6 OWCP properly notified her that if she
did not completely answer all the questions and return the form within 30 days, her benefits
would be suspended. The record demonstrates that the form was mailed to appellant’s address of
record.7
The record shows no response from appellant prior to the November 25, 2015 decision.
Based on the absence of a response, the Board finds that OWCP properly suspended appellant’s
compensation benefits effective December 13, 2015.8 The Board has consistently held that
suspension of benefits is proper for failure to complete and return a Form CA-1032.9
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective December 13, 2015 because she failed to complete and return a Form CA-1032 as
requested.

6

See Kevin Igo, 49 ECAB 191 (1997) (the Board held that appellant must complete and return Form CA-1032
and that suspension of compensation was proper sanction for failure to do so).
7

I.A., Docket No. 1168 (issued November 4, 2015).

8

J.J., Docket No. 09-1724 (issued March 1, 2010).

9

R.R., Docket No. 13-548 (issued June 13, 2013); D.B., Docket No. 09-1434 (issued February 22, 2010).

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 25, 2015 is affirmed.
Issued: May 2, 2016
Washington, DC

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

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

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

4