United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
A.T., Appellant

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

Docket No. 20-0731
Issued: September 30, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 14, 2020 appellant filed a timely appeal from a January 31, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On October 30, 2019 appellant, then a 36-year-old inventory management specialist, filed
an occupational disease claim (Form CA-2) alleging that he developed throat and sinus conditions
and a respiratory infection due to factors of his federal employment, including exposure to mold.
1

5 U.S.C. § 8101 et seq.

He noted that he first became aware of his conditions and their relationship to his federal
employment on October 21, 2019. Appellant stopped work on October 21, 2019 and returned to
work on October 22, 2019.2
In support of his claim, appellant submitted his position description and a Notification of
Personnel Action (Form SF-50) effective February 17, 2019.
In a November 6, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and attached a questionnaire for his completion. In a separate letter of even date, OWCP
requested additional information from the employing establishment. It afforded both parties 30
days to submit the requested evidence.
In an undated statement, appellant asserted that on October 3, 2019 he was working in a
building that was designated by the employing establishment with a risk assessment code for
facility conditions that were conducive to mold growth. He noted that his symptoms included
coughing, sinus issues, and sore throat. Appellant indicated that he was first examined on
October 21, 2019 and diagnosed with pharyngitis. He contended that he had no history of illness.
Appellant asserted that his physician opined that exposure to mold caused a sore throat due to
irritation from coughing and sinus drip, and as a result, he developed a bacterial infection.
In a November 26, 2019 response to OWCP’s questionnaire, K.W., a section chief with the
employing establishment, asserted that none of its areas had been tested to determine if harmful
mold was present, but that it was cleaning all areas that had been reported to have visible mold.
He indicated that all of its employees were sent home on October 15, 2019 to telework while its
building was being cleaned and they returned to their normal duty stations on November 12, 2019.
K.W. further noted that appellant worked Monday through Thursday, eight hours per day and
performed normal administrative office desk functions including computer and filing work.
By decision dated December 16, 2019, OWCP denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish the alleged employment
factors. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
OWCP continued to receive evidence. In an October 3, 2019 notice of hazard, the
employing establishment notified its employees that its building was conducive to mold growth
and determined to be “Risk Assessment Code 3 (moderate).”
Appellant submitted a series of e-mails dated from October 15 through November 12, 2019
between the employing establishment and its employees providing updates on mold cleaning in
the building. The employing establishment notified its employees that they could fully return to
the office on November 12, 2019.

2
In an undated work status report (Form CA-3), the employing establishment informed OWCP that appellant had
stopped work on October 21, 2019 after filing his claim and returned to work without restrictions on October 22, 2019.

2

In a January 10, 2020 response to OWCP’s questionnaire, appellant asserted that he was
exposed to a source of infection in his cubical work area, work surfaces, cabinets, and ceiling tiles.
He noted that the exposure began in October 2019 and he was exposed daily while working eighthour shifts. Appellant indicated that all employees in the same building were exposed. He asserted
that he never experienced the same or similar infection before.
Dr. Wallace B. McLeod, a family medicine specialist, in a January 13, 2020 duty status
report (Form CA-17), described the history of injury as working in a molded environment. He
observed that appellant had chronic nasal drainage and congestion. Dr. McLeod diagnosed chronic
allergic sinusitis and indicated that appellant was advised to resume work on November 19, 2019
without restrictions.
On January 15, 2020 appellant requested reconsideration. In an attached letter dated
January 10, 2020, he noted that he was submitting new medical reports and other evidence.
By decision dated January 31, 2020, OWCP modified its December 16, 2019 decision
finding that appellant had established that the alleged federal employment factors occurred as
described. However, the claim remained denied because the medical evidence of record did not
contain a valid medical diagnosis causally related “to the incident of exposure to mold.”
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which

3

Supra note 1.

4

J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5

J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No.18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.8 The opinion of the physician must be based
on a complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment factors identified by the employee.9
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted a January 13, 2020 Form CA-17 report from
Dr. McLeod, who diagnosed chronic allergic sinusitis as a result of exposure to a molded
environment at work. The Board finds that this report establishes a medical diagnosis in
connection with the accepted employment factors.10 As OWCP has not yet reviewed the medical
evidence of record in regard to the issue of causal relationship, the case must therefore be
remanded. Following such further development as deemed necessary, OWCP shall issue a de novo
decision as to whether appellant has met his burden of proof to establish that his diagnosed medical
condition is causally related to the accepted factors of his federal employment.11
CONCLUSION
The Board finds that the case is not in posture for decision.

7

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

8
A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J., 59
ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

See K.A., Docket No. 18-0999 (issued October 4, 2019).

11

M.B., Docket No. 20-0265 (issued June 17, 2020); E.C., Docket No. 19-0854 (issued October 17, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, Bexar, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0248
Issued: April 14, 2016

Case Submitted on the Record

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

JURISDICTION
On November 25, 2015 appellant, through counsel, filed a timely appeal from an
August 31, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty.
FACTUAL HISTORY
On November 27, 2012 appellant then a 43-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1), alleging that on November 13, 2012, while moving his
1

5 U.S.C. § 8101 et seq.

belongings to another workstation, he injured his upper back, lower back, legs, and neck. He
stopped work on November 16, 2012. The employing establishment controverted appellant’s
claim.
By letter dated December 4, 2012, OWCP advised appellant of the type of evidence
needed to establish his claim, particularly requesting that he submit a physician’s reasoned
opinion addressing the relationship of his claimed condition and specific work factors.
In a statement dated November 26, 2012, appellant indicated that on November 13, 2012
he was moving his belongings to another department, and when he bent over to pick up a box, it
slipped, and he jerked to keep the box from falling, and he felt pain in his low back and neck. He
noted the pain radiated into his ankle.
Appellant submitted a September 14, 2012 work status form from a physician assistant
who noted that appellant’s lumbar spine had been treated and that he could return to work
September 14, 2012 with restrictions.
In a November 21, 2012 report, Dr. James Key, a Board-certified orthopedist, treated
appellant for neck pain. Appellant reported working as a mechanic and on November 13, 2012
he moved a box to a cubicle and felt neck and low back pain which radiated into both legs.
Dr. Key noted appellant’s history was significant for two prior low back surgeries on
December 21, 2010 and February 28, 2012. On examination, findings included tenderness to
palpation of the neck and low back, muscle spasms, limited range of motion of the lumbar and
cervical spine, and positive straight leg test. Dr. Key diagnosed lumbar disc displacement,
lumbar sprain and strain, and neck sprain and strain. He opined that after reviewing appellant’s
job duties and based on his physical examination, appellant sustained an on-the-job injury
directly related to the performance of his job duties. In a work status report dated November 28,
2012, Dr. Key noted that appellant was under his care for a work-related injury which occurred
on November 21, 2012. In duty status reports dated November 21 and December 10, 2012, he
noted that appellant sustained a cervical and lumbar spine injury due to a lifting injury/incident
and was disabled from work.
In a January 17, 2013 decision, OWCP denied appellant’s claim for a traumatic injury
finding the evidence did not support that the claimed events occurred as alleged.
On February 19, 2013 appellant requested reconsideration. His representative provided a
statement addressing how the claimed injury occurred.
Appellant also provided additional medical evidence. In letters of disability dated
December 10, 2012 and January 29, 2013, Dr. Key noted that appellant worked as a mechanic
and on November 13, 2012 he was asked to move a box and felt neck and low back pain which
radiated into both legs. He reiterated that appellant’s history was significant for two low back
surgeries on December 21, 2010 and February 28, 2012. Dr. Key recommended that appellant
be off work due to his clinical presentation of increasing pain and dysfunction and difficulties
with activities of daily living.
In January 29 and February 25, 2013 reports, Dr. Key treated appellant for neck and low
back pain. He noted appellant’s employment as a mechanic and that on November 13, 2012
2

appellant moved a box and felt a sudden discomfort to his neck and low back, which radiated
into his legs. Dr. Key diagnosed lumbar and cervical disc displacement, lumbar sprain and
strain, and neck sprain and strain. He again opined that, after reviewing appellant’s job duties
and his physical examination, appellant sustained an injury directly related to the performance of
his job duties.
Appellant submitted a duty status report from Dr. Rojelio E. Solano, a chiropractor, dated
April 26, 2013. Dr. Solano noted that he previously had a rupture and fusion at L5-S1 and that
he was disabled from work. In reports dated April 29 to June 11, 2013, he noted that appellant
complained of neck and low back pain which radiates into his hands and feet. Dr. Solano
diagnosed lumbar fusion reinjury, cervical disc injury, muscle spasm, and inflammation.
Appellant was treated by Dr. Ray Altamirano, Board-certified in family medicine, from April 26
to May 24, 2013 for low back pain after a lifting injury at work on November 13, 2012.
Dr. Altamirano diagnosed L4-S1 back injury. Appellant also submitted physical therapy
records.2
In a decision dated June 19, 2013, OWCP denied appellant’s claim, as modified. It found
that, although the claimed incident was accepted, it denied the claim because the medical
evidence failed to establish that his diagnosed conditions were causally related to the accepted
incident.
Appellant requested reconsideration. He submitted a July 22, 2013 MRI scan of the
cervical spine which revealed posterior central, paracentral disc protrusion with thecal sac
impingement, left posterolateral disc bulge, canal stenosis at C3-4, posterior central, paracentral
disc protrusion with thecal sac impingement with canal narrowing at C4-5, C5-6 and C6-7, and
posterior central bulge at C7-T1. A lumbar spine MRI scan of the same date showed posterior
central, paracentral disc abnormality compatible with protrusion/disc osteophyte with thecal sac
impingement and spinal stenosis, left posterolateral disc bulge, mild spinal stenosis at L3-4,
posterior central, left posterolateral disc bulge, and postsurgical changes at L6-S1.
By report dated August 14, 2013, Dr. Leonel Reyes, a Board-certified family practitioner,
noted seeing appellant for a November 13, 2012 traumatic injury to his neck and low back.
Appellant reported feeling pain in his neck and lower back when he lifted a box on
November 13, 2012 as he was moving his personal belongings from one cubicle to another.
Dr. Reyes opined that appellant’s cervical herniated disc, cervical radiculopathy, lumbar
herniated disc, and lumbar radiculopathy were a direct result of the traumatic injury he sustained
2

The medical evidence submitted also included diagnostic test results. A November 19, 2012 lumbar spine
computerized tomography scan showed significant multilevel disc disease at L3-4 where a central disc bulge with
osteophyte resulted in central spinal stenosis with impingement on the L4 nerve roots, and anterior interbody fusion
at L5-S1 with bilateral foraminal crowding but no significant central spinal stenosis. A January 17, 2013 cervical
spine x-ray reflected moderate spondylosis change, cervical muscle spasms, and atlantoaxial osteoarthritic change.
A January 17, 2013 lumbar spine x-ray revealed completed fusion at L5-S1 with residual scoliosis, mild spondylosis
change and mobility at four disc levels. A January 17, 2013 magnetic resonance imaging (MRI) scan of the cervical
spine showed moderate-to-severe spondylosis changes with disc protrusion/herniations and osteophyte formation at
C3 to 7, uncovertebral and facet hypertrophy with neural foraminal narrowing, and kyphosis suggesting anterior disc
height loss. A January 17, 2013 lumbar MRI scan dated revealed completed fusion at L5-S1 with scarring at the
nerve root and disc protrusion/herniations at L3-4 without spinal stenosis.

3

on November 13, 2012 when he lifted the box. He noted that appellant had a previous back
injury while in the service and underwent lumbar surgeries on December 21, 2010 and
February 28, 2012. Dr. Reyes noted that appellant was subsequently released to full duty with
no restrictions. He opined that appellant’s old injury had no relevance to the new traumatic
injury he sustained on November 13, 2012 when lifting a box. Dr. Reyes noted that the new
incident aggravated appellant’s preexisting back condition.
In a decision dated November 1, 2013, OWCP denied modification of the decision dated
June 19, 2013.
Appellant again requested reconsideration on November 27, 2013. In a November 18,
2013 report, Dr. Reyes noted a history of injury and diagnosed cervical herniated disc, cervical
radiculitis, lumbar herniated disc, and lumbar radiculitis. He opined that appellant’s cervical disc
herniation, cervical radiculopathy, lumbar herniated disc, and lumbar radiculopathy were a direct
result of the November 13, 2012 traumatic injury he sustained when he lifted a box of his
belongings at work. Dr. Reyes noted that appellant had previous injury to his back while in the
service and underwent lumbar surgeries on December 21, 2010 and February 28, 2012. He
clarified appellant’s work status after the lumbar surgeries and indicated that appellant had been
under restrictions ever since the last surgery in 2012.3 Dr. Reyes opined that appellant’s old
injury had no relevance to the new November 13, 2012 injury. He opined that the new incident
aggravated appellant’s preexisting back condition and was a new injury.
In a decision dated February 21, 2014, OWCP denied modification.
On April 17, 2014 appellant again requested reconsideration. He submitted an April 4,
2014 report from Dr. Reyes which provided clarification of the mechanism of injury. Appellant
reported that on November 13, 2012 he was collecting his personal belongings in a box to move
to another cubicle and was unplugging the electrical equipment and hit his head on the bottom of
the desk. He reported the weight of the objects in the box was approximately 10 pounds and, as
he went to lift the box, he jerked to the side to keep objects from falling from the box and had
low back pain which radiated to his legs. Dr. Reyes opined that appellant’s cervical disc
herniation, cervical radiculopathy, lumbar herniated disc, and lumbar radiculopathy were a direct
result of the November 13, 2012 traumatic injury when he hit his head at the bottom of the desk.
He noted appellant’s previous service-related injury and lumbar surgeries and that he had
subsequently been released to full duty with no restrictions. Dr. Reyes reiterated that appellant’s
old injury had no relevance to the November 13, 2012 new injury.
In a decision dated July 16, 2014, OWCP again denied the claim and found that the
history provided by Dr. Reyes in his April 4, 2014 report was not consistent with the history
previously provided by appellant.

3

Appellant provided a February 28, 2012 operative report from Dr. Frank Kuwamura, a Board-certified
orthopedist, who performed an anterior lumbar interbody fusion at L5-S1 through retroperitoneal and diagnosed
lumbar disc postlaminectomy syndrome at L5-S1 with bilateral leg radiculopathy, severe stenosis and degenerative
disc disease at L5-S1.

4

On June 2, 2015 appellant’s counsel again requested reconsideration. Appellant
submitted a July 18, 2014 report from Dr. Ernesto Garza, a Board-certified general surgeon, who
noted that Dr. Reyes was no longer practicing in that office and he was taking over appellant’s
care for his on-the-job injury and conditions due to that injury. Dr. Garza noted that appellant
was undergoing conservative treatment with oral medications.
In a decision dated August 31, 2015, OWCP denied modification of the decision dated
July 16, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
It is undisputed that, on November 13, 2012, appellant lifted a box of his belongings
while moving from his cubicle to another workstation. However, he has not submitted sufficient
medical evidence to establish that his diagnosed medical conditions were caused or aggravated
by the November 13, 2012 incident.
In November 21, 2012 to February 25, 2013 reports, Dr. Key noted treating appellant for
radiating neck and low back pain which began on November 13, 2012 when he lifted a box at
work. He noted appellant’s two prior back surgeries and diagnosed lumbar disc displacement,
4

Gary J. Watling, 52 ECAB 357 (2001).

5

T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

lumbar sprain and strain, and neck sprain and strain. Dr. Key opined that after reviewing
appellant’s job duties and based on his examination, appellant sustained an on-the-job injury
directly related to his job duties. In status reports dated November 21 and 28, and December 10,
2012, he noted treating appellant for a work-related lifting injury. In December 10, 2012 and
January 29, 2013 letters of disability, Dr. Key noted that appellant related having neck and low
back pain on November 13, 2012 after lifting a box of his belongings at work. Although he
supported causal relationship, Dr. Key failed to provide sufficient medical rationale explaining
the basis of his conclusion as to the causal relationship between appellant’s diagnosed conditions
and the workplace lifting incident.7 Dr. Key did not explain how lifting a box would have
caused or aggravated the diagnosed conditions or why the current lumbar and cervical conditions
were not otherwise due to the preexisting lumbar surgeries or age-related degenerative changes.
Therefore, the reports from Dr. Key are insufficient to meet appellant’s burden of proof.8
Appellant was treated by Dr. Reyes on August 14, 2013 for a neck and low back injury
which appellant reported occurred on November 13, 2012 while lifting and moving his
belongings to another department. Dr. Reyes noted appellant’s previous lumbar surgeries on
December 21, 2010 and February 28, 2012 and advised that appellant was later released to full
duty with no restrictions. He opined that appellant’s old injury was unrelated to the new
November 13, 2012 injury and noted that the new incident further aggravated his preexisting
back condition. Dr. Reyes diagnosed cervical herniated disc, cervical radiculopathy, lumbar
herniated disc, and lumbar radiculopathy as a direct result of the November 13, 2012 traumatic
incident. On November 18, 2013 he reiterated his opinion on causal relationship, but clarified
that, since his 2012 surgery, appellant had work restrictions. Dr. Reyes still maintained that
appellant’s old injury was not relevant to his current condition. On April 4, 2014 he provided
clarification of the mechanism of injury, noting that, in addition to lifting a box of his belongings
on November 13, 2012, appellant also hit his head on the bottom of a desk after he unplugged
electrical equipment. Dr. Reyes opined that appellant’s diagnosed cervical and lumbar
conditions were a direct result of the traumatic injury he sustained on November 13, 2012 when
he hit his head on the bottom of a desk. He also noted that appellant had been released to full
duty following his 2010 and 2012 back surgeries.
Dr. Reyes’ reports are insufficient to establish the claim as his reports were not based on
an accurate or consistent history.9 In his August 14, 2013 and April 4, 2014 reports, he stated
that appellant was released to full duty after his February 2012 surgery while in his
November 18, 2013 report, he acknowledged that appellant had restrictions after the most recent
low back surgery. Furthermore, in his April 4, 2014 report, Dr. Reyes noted that appellant hit his
head on the bottom of a desk. This history is markedly different than the history provided by
appellant on the Form CA-1 and in a November 26, 2012 statement in which he reported
gathering his belongings, but did not indicate that he hit his head. Thus, Dr. Reyes does not have
7

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
8

See L.D., Docket No. 09-1503 issued April 15, (2010) (the fact that a condition manifests itself during a period
of employment does not raise an inference that there is a causal relationship between the two).
9

See Frank Luis Rembisz, 52 ECAB 147 (2000); Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (medical opinions
based upon an incomplete history have little probative value).

6

a consistent and accurate history. He attributes, at least in part, appellant’s neck and back
condition to having hit his head on desk, an event that is not supported by the evidence most
contemporaneous with the claimed injury.10 The need for an accurate history is particularly
important where appellant has a preexisting condition in a part of the body for which he now
claims compensation benefits. Dr. Reyes did not otherwise provide sufficient medical rationale
explaining the basis of his conclusory opinion regarding the causal relationship between
appellant’s cervical and lumbar conditions and the established factors of employment.11
Consequently, his reports are of limited probative value and insufficient to establish the claim.
Appellant was treated by Dr. Altamirano on April 26, 2013 for low back pain after a
lifting injury at work. Dr. Altamirano diagnosed L4-S1 back injury. In reports dated May 10
and 24, 2013, he noted that appellant sustained a low back reinjury on November 13, 2012. The
Board finds that, although Dr. Altamirano noted that appellant was injured at work, he did not
provide any medical rationale to explain the basis of his conclusory opinion regarding the causal
relationship between appellant’s lumbar and cervical conditions and the factors of employment.12
Therefore, these reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted a July 18, 2014 report from Dr. Garza who noted that he was
taking over the care of appellant for his on-the-job injury and his conditions due to the injury.
This report is of limited probative value as Dr. Garza did not provide a history of injury13 or
specifically explain how the November 13, 2012 work incident caused or aggravated a diagnosed
medical condition.
Appellant submitted reports from Dr. Solano, a chiropractor. However, these reports do
not diagnose a spinal subluxation as demonstrated by x-ray.14 Section 8101(2) of FECA
provides that chiropractors are considered physicians “only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary.”15 As
Dr. Solano did not diagnose a spinal subluxation based on x-ray, his reports cannot be considered
as competent medical evidence under FECA.16

10

The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence.
S.S., 59 ECAB 315 (2008).
11

See supra note 7.

12

See T.M., Docket No. 08-975, issued February 6, 2009 (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
13

Frank Luis Rembisz, 52 ECAB 147 2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
14

Dr. Solano also did not address how the November 13, 2012 work incident caused a diagnosed medical
condition.
15

5 U.S.C. § 8101(2).

16

See Susan M. Herman, 35 ECAB 669 (1984).

7

Appellant submitted evidence from a physical therapist and a physician assistant.
However, the Board has held that treatment notes signed by a physical therapist or physician
assistant are of diminished probative value as these providers are not considered physicians
under FECA.17
The remainder of the medical evidence is of limited probative value as it does not provide
an opinion on the causal relationship between the November 13, 2012 work incident and
appellant’s diagnosed medical conditions. For this reason, this evidence is not sufficient to meet
appellant’s burden of proof.18
On appeal appellant’s counsel asserts that OWCP improperly denied the claim and that
the submitted medical evidence is sufficient evidence to establish that on November 13, 2012
appellant injured his lumbar and cervical spine when lifting a box and moving his belongings to
another department. As noted above, the medical evidence is insufficient to establish that
appellant’s current diagnosed conditions were causally related to the employment incident.
Appellant has not submitted a physician’s report, based on an accurate history, which explains
how the accepted work incident on November 13, 2012 caused or aggravated lumbar or cervical
conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury in the performance of duty.

17

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2).
18

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

8

ORDER
IT IS HEREBY ORDERED THAT the August 31, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 14, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.P., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN
STATION, Trenton, NJ, Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1583
Issued: April 2, 2015

Case Submitted on the Record

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

JURISDICTION
On July 8, 2014 appellant, through his representative, filed a timely appeal from a
May 23, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established left carpal tunnel syndrome causally related to
factors of his employment.
On appeal appellant’s representative contends that OWCP erred in failing to consider his
legal argument and medical evidence in denying modification.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 17, 2012 appellant, then a 65-year-old city mail carrier, filed an occupational
disease claim alleging that on July 14, 2011 he first realized that his left carpal tunnel syndrome
was employment related. Specifically he attributed the condition to repetitive use of his left arm
and hand in the delivery and handling of mail.
In correspondence dated February 14, 2012, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. Appellant was advised as to the medical and
factual evidence required and given 30 days to provide the requested information.
In response to OWCP’s request, appellant submitted medical and factual evidence as set
forth below.
In a December 8, 2011 report, Dr. Emil Matarese, a treating Board-certified neurologist,
conducted a neurological examination and provided findings from the examination. He related
that appellant continued to have left hand grip strength weakness as well as left wrist pain.
Dr. Matarese stated that appellant has a history of pain while delivering and carrying mail. He
diagnosed moderate-to-severe left carpal tunnel syndrome based on review of a nerve conduction
study.
In a December 20, 2011 progress report, Dr. R. Drew Krajeski, a treating Board-certified
orthopedic surgeon, diagnosed left carpal tunnel syndrome. Under initial evaluation, he related
that appellant works as a mail carrier which entails using the left hand for grasping mail. A
physical examination revealed full cervical range of motion, no upper extremity motor deficits
and negative Guyon’s canal and Tinel’s test at the carpal tunnel. Dr. Krajeski noted that an
electromyograph test showed evidence of left wrist median nerve prolonged terminal latency and
no evidence of cervical radiculopathy.
In a January 6, 2012 letter, Dr. Krajeski stated that appellant had been diagnosed with left
carpal tunnel syndrome with a left medial nerve terminal latency of 8.11 milliseconds. He
related that appellant stated that he grasps packages and delivers mail with his left hand. Thus,
Dr. Krajeski stated that “[i]t is reasonable to assume that this repetitive activity could result in
symptoms of carpal tunnel syndrome or aggravate preexisting carpal tunnel syndrome.”
In a February 27, 2012 attending physician’s report (Form CA-20), Dr. Matarese
diagnosed left carpal tunnel syndrome and bilateral cervical strain. He checked “yes” to the
question of whether the diagnosed condition was employment related. Under explanation,
Dr. Matarese stated that appellant’s repetitive duties of lifting and carrying caused or aggravated
the conditon.
By decision dated May 9, 2012, OWCP denied appellant’s claim as he failed to establish
fact of injury. It found that the evidence failed to establish a diagnosed medical condition
causally related to the claimed work factors and/or event.
By letter dated April 30, 2013, appellant’s representative requested reconsideration and
submitted the following medical evidence in support of his request.

2

Dr. Matarese, in an April 10, 2012 report, noted that appellant had undergone left carpal
tunnel decompression surgery on January 5, 2012 and continued to be disabled from working.
He conducted a neurologic reevaluation and reported significant improvement in appellant’s left
hand and wrist numbness and pain. Dr. Matarese noted that appellant continued to have
restricted mobility in his left wrist with discomfort on increased activity. In concluding, he
diagnosed left carpal tunnel syndrome which he attributed to appellant’s repetitive duties as a
letter carrier.
In a July 10, 2012 report, Dr. Matarese reevaluated appellant for left wrist pain
complaints. He noted that appellant continued to have left wrist pain following decompression
surgery for his left carpal tunnel syndrome. Dr. Matarese stated that appellant’s injury was due
to repetitive trauma as a result of his duties as a letter carrier.
In an April 17, 2013 report, Dr. Krajeski attributed appellant’s carpal tunnel syndrome to
appellant’s work duties which involved repetitive grasping. A physical examination revealed
normal motor examination, negative Guyon’s canal and Tinel’s test and a positive Phalen’s test
after two seconds. Dr. Krajeski reported that an electromyograph demonstrated moderate-tosevere left carpal tunnel syndrome and that on January 5, 2012 appellant underwent left carpal
tunnel surgery.
By decision dated July 29, 2013, OWCP found the evidence sufficient to warrant
modification, but denied the claim on the basis that the medical evidence was insufficient to
establish causal relationship.
In a letter dated March 5, 2014, appellant’s representative requested reconsideration. He
argued that, while the medical evidence submitted was not fully rationalized, it was
uncontradicted and, thus, OWCP erred in failing to develop the medical evidence. Appellant’s
representative noted that Dr. Matarese’s April 10, 2012 report was detailed, but found by OWCP
to contain insufficient reasoning regarding causal relationship. He contended that letter carrier
duties are common knowledge and, thus, it is unnecessary to provide a description. Appellant’s
representative argued that Dr. Matarese understood both appellant’s work duties and medical
history. In concluding, he argued that OWCP had a duty to further develop the medical evidence
as there was no medical evidence contradicting Dr. Matarese’s opinion.
Following his request for reconsideration, appellant submitted additional medical
evidence from Dr. Mataerese as set forth below.
In a March 3, 2014 disability note, Dr. Matarese indicated that appellant continued to be
disabled from performing his duties as a letter carrier due to his left carpal tunnel syndrome.
In a work capacity evaluation form (OWCP-5c) dated March 3, 2014, Dr. Matarese
indicated that appellant was permanently disabled from performing his usual employment duties.
Under the comments section, he stated that appellant failed decompressive surgery and currently
uses medication to control his pain.
Dr. Matarese, in a March 3, 2014 duty status form (CA-17), diagnosed carpal tunnel
syndrome which he opined was caused by repetitive trauma from appellant’s employment. He
then provided work restrictions.
3

By decision dated May 23, 2014, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.7 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that his left
hand condition was causally related to his federal employment. OWCP accepted that his
employment duties required delivering and handling mail. The Board finds that appellant failed

2

5 U.S.C. § 8101 et seq.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
6

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
7

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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to provide a rationalized medical opinion explaining how his left carpal tunnel condition was
causally related to these employment duties.
Appellant provided reports from Drs. Krajeski and Matarese in support of his claim that
his left carpal tunnel condition was employment related. Dr. Matarese, in reports dated April 10
and July 10, 2012 and March 3, 2014, and a March 3, 2014 duty status report, attributed
appellant’s left carpal tunnel condition to his repetitive letter carrier duties. In a January 6, 2012
letter and April 17, 2013 report, Dr. Krajeski diagnosed left carpal tunnel syndrome which he
attributed to appellant’s work duties requiring repetitive grasping. However, neither Dr. Krajeski
nor Dr. Matarese provided any rationale for their causation finding. A mere conclusion without
the necessary rationale explaining how and why the physician believes that a claimant’s accepted
exposure could result in a diagnosed condition is not sufficient to meet a claimant’s burden of
proof.9
The Board has held that the fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.10 An award of compensation may not
be based on surmise, conjecture, or speculation. Neither the fact that appellant’s condition
became apparent during a period of employment nor the belief that his condition was caused,
precipitated or aggravated by his employment is sufficient to establish causal relationship.11
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment, and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit appropriate medical documentation in response to OWCP’s request. As there is no
probative, rationalized medical evidence addressing how his claimed left carpal tunnel condition
was caused or aggravated by identified employment factors, he has not met his burden of proof.
On appeal appellant’s counsel argues that appellant has established his claim as both
Drs. Krajeski and Matarese attributed appellant’s left carpal tunnel condition to his work and
there is no contrary evidence. As discussed above, however, the reports from Drs. Krajeski and
Matarese are insufficient to support his claim as the opinions from the physicians were
conclusory and without any supporting rationale explaining their conclusions. Since appellant
failed to submit any medical opinion evidence explaining how the diagnosed condition was
causally related to the accepted employment factors, he did not meet his burden of proof. The
Board will therefore affirm OWCP’s decision.

9

See S.S., 59 ECAB 315 (2008) (medical reports not containing rationale on causal relation are entitled to little
probative value and are generally insufficient to meet an employee’s burden of proof); Beverly A. Spencer, 55
ECAB 501 (2004) (a mere conclusion without the necessary medical rationale explaining how and why the
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is not sufficient to meet
the claimant’s burden of proof).
10

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007) Daniel O. Vasquez, 57 ECAB
559 (2006).
11

See D.U., supra note 5; D.I., id.; Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that his left carpal tunnel syndrome
was causally related to factors of his employment
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2014 is affirmed.
Issued: April 2, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF THE ARMY, CHAPLAIN
CENTER & SCHOOL, Fort Jackson, SC,
Employer
__________________________________________

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Appearances:
Gary Blatt, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2
Issued: October 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 28, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 30, 2005 and a February 24, 2006
Office decision denying further merit review of the claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established an emotional condition causally
related to compensable work factors; and (2) whether the Office properly determined that
appellant’s application for reconsideration was insufficient to warrant merit review of the claim.
FACTUAL HISTORY
On March 1, 2004 appellant, then a 50-year-old training program specialist, filed an
occupational claim (Form CA-2) alleging that she sustained severe depression as a result of her
federal employment. In a narrative statement received by the Office on March 16, 2004, she

alleged that she was subject to “[a] hostile work environment that encompasses 10 years of
deception, hostility, outright lying and absence of moral and ethical practices.…” Appellant
alleged that other coworkers had been promoted and given preferential treatment. According to
appellant, on February 24, 2004 approved training was cancelled, while another employee had
been authorized to perform duties off-site. She stated that she had been given a box cutter and
when appellant asked what she was supposed to do with it, was told by a Chaplain L. Alan
Brown she “could slit her wrists.” According to appellant in 2002 she had taken an overdose of
painkillers at work and was driven home by supervisors and left in her vehicle. She also referred
to a 1996 incident in which she alleged Chaplain Brown forged her signature on a time card.
The employing establishment’s response included a March 11, 2004 memorandum from a
human relations specialist, who stated that the allegations were unsubstantiated. The specialist
stated that, with respect to a 2002 incident, appellant was driven home after becoming ill and
walked into her house. An undated statement from Chaplain Brown reported that he did not
recall giving appellant a box cutter. A March 11, 2004 letter from a management analyst stated
that no one forged appellant’s signature on a time card.
Appellant alleged that, on February 25, 2004, she had been charged four hours of sick
leave and although leave was reinstated, there were other instances of arbitrary charges for leave.
She alleged that a coworker, Paul Villano, continually harassed her.
By decision dated August 27, 2004, the Office denied her claim for compensation. The
Office found that appellant had not substantiated a compensable work factor with respect to her
claim.
Appellant requested a hearing before an Office hearing representative, which was held on
March 30, 2005. She alleged that she was denied training that was provided to others, that when
she retuned to work in April 2004 she was detailed to a position outside the organization and had
her security clearance revoked and received an improper and adverse performance appraisal.
According to appellant, Chaplain Charles Howell had told her she was always complaining about
something and “you [a]re the worst employee.” In an April 17, 2005 letter, appellant noted that
she had filed an Equal Employment Opportunity Commission (EEOC) complaint for religious
discrimination.
The response from the employing establishment included a May 2, 2005 statement from
Chaplain Joseph S. Batluck Sr., who denied that appellant was subject to verbal abuse or treated
differently from other employees. He stated that no supervisor had told appellant that she was
the worst employee. A statement from a Chaplain Howell indicated that appellant’s access to
sensitive information was suspended in view of her claim that she was suffering from severe
depression and had taken an overdose of painkillers at work.
By decision dated September 30, 2005, the Office hearing representative affirmed the
August 27, 2004 decision The hearing representative found that appellant had not substantiated
any compensable work factor with respect to her claim.
In a letter dated February 13, 2006, appellant requested reconsideration. She indicated
that additional evidence would be submitted. In a letter dated February 15, 2006, received by the

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Office on February 23, 2006, appellant requested reconsideration and submitted an EEOC
decision dated February 8, 2006. The EEOC decision found that appellant was subject to
discrimination based on religion with respect to suspension of security clearance, placement of
detail and an adverse performance appraisal.
By decision dated February 24, 2006, the Office stated that appellant’s request for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.1 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.3
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.4 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.5

1

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

2

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

3

Lillian Cutler, 28 ECAB 125 (1976).

4

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

5

Margreate Lublin, 44 ECAB 945, 956 (1993).

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ANALYSIS -- ISSUE 1
In the present case, appellant alleged that she was subject to a hostile work environment.
It is her burden to submit sufficient factual evidence to establish a compensable work factor.6
Appellant generally alleged that she was passed over for promotions and was treated differently
than other employees. There was, however, no probative evidence submitted that establishes a
compensable work factor. The determination of whether an employee is promoted is an
administrative matter and only if the evidence establishes error or abuse by the employing
establishment is the matter compensable. Appellant provided no pertinent evidence establishing
that she was erroneously denied a promotion. With respect to other administrative actions, such
as the use of leave or denial of training, appellant also failed to provide specific evidence
establishing error or abuse by the employing establishment.
There were specific incidents alleged with respect to actions of supervisors and
coworkers. Appellant alleged, for example, that her signature was forged on a time card, she was
brought home after taking an overdose of painkillers and left in her vehicle and she was told she
could slit her wrists with a box cutter. None of these allegations were supported by additional
factual evidence. The employing establishment denied that her signature was ever forged or that
she was left in her vehicle at home following an overdose of painkillers. The Chaplain identified
with respect to a box cutter incident did not support appellant’s version of the incident.
Appellant made allegations with respect to verbal abuse, such as a statement from a supervisor
that she was the worst employee, but no supporting evidence was submitted and the employing
establishment denied that a supervisor had made such a statement.
Based on the evidence of record as of September 20, 2005, appellant did not substantiate
a compensable work factor with respect to her claim. In the absence of a compensable work,
appellant did not meet her burden of proof and the medical evidence is not considered.7
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,8
the Office’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that set forth arguments and contains
evidence that either: “(1) shows that the Office erroneously applied or interpreted a specific
point of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent evidence not previously considered by the Office.”9
Section 10.608(b) states that any application for review that does not meet at least one of the

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On this issue the Board is limited to review of the evidence that was before the Office at the time of the
September 20, 2005 decision.
7

See Margaret S. Krzycki, 43 ECAB 496 (1992).

8

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
9

20 C.F.R. § 10.606(b)(2).

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requirements listed in section 10.606(b)(2) will be denied by the Office without review of the
merits of the claim.10
ANALYSIS -- ISSUE 2
On February 23, 2006 the Office received a February 8, 2006 EEOC decision with
respect to a complaint filed for discrimination based on religion. The administrative judge noted
that appellant had claimed that the suspension of her security clearance, placement on detail and
adverse performance appraisal constituted discrimination. The decision found that appellant had
proven by a preponderance of the evidence that she was discriminated against as alleged.
The evidence submitted constitutes relevant and pertinent evidence not previously
considered by the Office. The February 8, 2006 EEOC decision was new evidence that was
relevant to the issue of whether appellant established a compensable work factor in this case.11
Pursuant to 20 C.F.R. § 10.606(b)(2)(iii), appellant met the requirements for obtaining a merit
review on her claim. The case will be remanded to the Office for a proper decision on the
merits.
CONCLUSION
The evidence of record before the Office at the time of the September 30, 2005 Office
decision was not sufficient to meet appellant’s burden of proof to establish an emotional
condition causally related to compensable work factors. On reconsideration appellant submitted
relevant and pertinent evidence not previously considered and she is entitled to a decision on the
merits of the claim.

10

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

11

See Jimmy L. Day, 48 ECAB 654 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2005 is affirmed. The decision dated February 24,
2006 is set aside and the case remanded for further action consistent with this decision of the
Board.
Issued: October 15, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY, PICATINNY
ARSENAL, NJ, Employer
__________________________________________

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

Docket No. 16-0824
Issued: September 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2016 appellant filed a timely appeal from October 6, 2015 and
February 18, 2016 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.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on June 22, 2015.
FACTUAL HISTORY
On June 24, 2015 appellant, then a 31-year-old mechanical engineer, filed a traumatic
injury claim (Form CA-1) alleging that at 5:45 p.m. on June 22, 2015 he injured his left Achilles
tendon while playing in an intramural softball game.
1

5 U.S.C. § 8101 et seq.

In a report dated June 23, 2015, Dr. Philip D’Ambrosio, a Board-certified orthopedic
surgeon, described a history that appellant ruptured his left Achilles tendon while playing
softball. Following physical examination, the physician recommended surgery, which would
require six to eight weeks of recovery plus physical therapy. On July 1, 2015 Dr. D’Ambrosio
surgically repaired a traumatic tear of the left Achilles tendon. He submitted follow-up reports
and on August 13, 2015 advised that appellant could return to work on August 22, 2015. On an
attending physician’s report dated August 13, 2015, Dr. D’Ambrosio reported that appellant
injured his left Achilles tendon at a company ball game. He checked a form box marked “yes,”
indicating that the condition was employment related.
Appellant returned to full-time regular duty with no restrictions on August 24, 2015. He
filed a claim for compensation (Form CA-7) on August 24, 2015, for the period
August 7 to 21, 2015. The employing establishment indicated that he had received continuation
of pay from June 23 to August 6, 2015. Dr. D’Ambrosio provided follow-up care.
By letter dated August 28, 2015, OWCP informed appellant of the evidence needed to
support his claim. In a separate letter, it requested that the employing establishment provide
information regarding the circumstances of the claimed June 22, 2015 injury.
In a statement dated September 15, 2015, appellant indicated that he was not required to
participate in the June 22, 2015 softball game, that it was an optional activity run by the
employing establishment’s Morale, Welfare, and Recreation (MWR) program, which provided
activities to help maintain a healthy and good work environment. He further related that the
game, which was played on a field maintained by MWR on the employing establishment’s
premises, did not occur during regular working hours, but after work. Appellant advised that
MWR provided the rules and equipment, organized the schedules, and indicated that all games
were played on employing establishment fields.
On September 24, 2015 John F. Kostka, an employing establishment manager, answered
OWCP’s questions regarding the June 22, 2015 injury. He advised that appellant was not
required to participate in the activity which, he assumed, was for employee morale. Mr. Kostka
related that all employees were permitted, but not required to participate, and that the claimed
injury did not occur during working hours, but after work. He concluded that the employing
establishment provided leadership, equipment, and facilities.
By decision dated October 6, 2015, OWCP denied the claim, finding that appellant was
not in the performance of duty when injured on June 22, 2015. OWCP explained that the
evidence of record was insufficient to establish that the claimed condition arose during the
course of employment and within the scope of compensable work factors, noting that he was not
required to participate in the softball game which occurred after his regular working hours.
On December 4, 2015 appellant requested reconsideration. He maintained that the
claimed injury occurred in the performance of duty, relating that the softball league was a formal
recreation activity provided by MWR for both civilians and military personnel, and that all
games were played on employing establishment premises. Appellant cited the case Mary A.

2

Minter2 in support of his claim. He submitted a September 29, 2015 report in which
Dr. D’Ambrosio advised that appellant reported a history that, while at work on June 22, 2015,
he injured his Achilles tendon running bases at a softball game. Dr. D’Ambrosio described
appellant’s medical treatment, including the July 1, 2015 surgery, and postoperative care. He
opined that the injury clearly occurred during the sporting event and that, it appeared to him, if
this was a sponsored event the claim should be accepted. Dr. D’Ambrosio continued to provide
follow-up care. The record also includes hospital records of appellant’s ambulatory surgery on
July 1, 2015.
In a February 18, 2016 decision, OWCP denied modification of the October 6, 2015
decision. It found that the June 22, 2015 injury did not occur in the performance of duty, noting
that it was a recreational activity that was not a requirement of employment and that his
employing establishment did not incur a benefit from his participation beyond boosting morale.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. Regardless of whether the asserted claim involves
traumatic injury or occupational disease, an employee must satisfy this burden of proof.3
Section 8102(a) of FECA provides for payment of compensation for disability or death of
an employee resulting from personal injury sustained while in the performance of duty.4 This
phrase is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws; namely, arising out of and in the course of employment.5 “Arising in the
course of employment” relates to the elements of time, place, and work activity. To arise in the
course of employment, an injury must occur at a time when the employee may reasonably be
stated to be engaged in her master’s business, at a place where he or she may reasonably be
expected to be in connection with the employment and while he or she was reasonably fulfilling
the duties of employment or engaged in doing something incidental thereto. This alone,
however, is not sufficient to establishment entitlement to compensation. The employee must
also establish the concurrent requirement of an injury “arising out of the employment.” This
requires that a factor of employment caused the injury.6

2

52 ECAB 127 (2000).

3

Gary J. Watling, 52 ECAB 278 (2001).

4

5 U.S.C. § 8102(a).

5

See Bernard E. Blum, 1 ECAB 1 (1947).

6

R.S., 58 ECAB 660 (2007).

3

In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.7
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.8 The second component is whether the employment incident caused a personal injury
which generally can be established only by medical evidence.9
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; (2) the employing establishment, by
expressly or impliedly requiring participation or by making the activity part of the service of the
employee, brings the activity within the orbit of employment; or (3) the employing establishment
derives substantial direct benefit from the activity beyond the intangible value of improvement in
employee health and morale that is common to all kinds of recreation and social life.10
The mere fact that a claimant was on the premises at the time of injury is not sufficient to
establish entitlement to compensation benefits. It must also be established that the claimant was
engaged in activities which may be described as incidental to the employment, i.e., that he or she
was engaged in activities which fulfilled his employment duties or responsibilities thereto.11
ANALYSIS
The Board finds that appellant had failed to meet his burden of proof to establish an
injury in the performance of duty on June 22, 2015.
While the facts indicate that appellant was on the employing establishment premises
when he injured his left Achilles tendon on June 22, 2015 while playing softball, the injury did
not occur during a lunch or recreational period as a regular incident of his employment. By his
own admission, the softball game was played after work. Thus, while appellant met the premises

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012,
June 1995).
8

Linda S. Jackson, 49 ECAB 486 (1998).

9

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee); 10.5(q)
(traumatic injury and occupational disease defined, respectively).
10

S.B., Docket No. 11-1637 (issued April 12, 2012); R.P., Docket No. 10-1173 (issued January 19, 2011);
Ricky A. Paylor, 57 ECAB 568 (2006); Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright, 44
ECAB 176 (1992); see also A. Larson, The Law of Workers’ Compensation § 22.00 (2012).
11

A.K., Docket No. 09-2032 (issued August 3, 2010).

4

aspect of the first test, he did not meet the time aspect of the first test for coverage of recreational
activities.12
With respect to an express or implied requirement to participate in the activity, appellant
acknowledged and Mr. Kostka indicated that appellant was not required to participate in the
softball game, nor was softball part of his work or tasks incidental to his work. Rather, softball
was merely a recreational activity provided for employee morale. Even though the employing
establishment provided equipment and facilities and set the schedule for the games, the record
supports that this was part of the employing establishment’s MWR program.
There is no evidence of record to show that participation in the activity was made part of
the services of appellant. When the degree of employing establishment involvement descends
from compulsion to mere sponsorship or encouragement, the questions become closer and the
tests include whether the employing establishment sponsored or financed the event and whether
attendance was voluntary.13 However, there is no evidence that the employing establishment
encouraged appellant’s activity as part of his employment, and its involvement must be
considered de minimis and insufficient to bring the activity within the course of employment.14
Accordingly, there is no evidence that the second test has been met.
With respect to the third test, Mr. Kostka essentially indicated that the only benefit to the
employing establishment was related to employee morale and well-being. No evidence in the
record suggests that the activity was related in any notable way to the employing establishment’s
business. Consequently, there is no evidence that the employing establishment derived
substantial direct benefit from the activity beyond that intangible value of improvement in
employee health and morale that is common to all kinds of recreational activity.15
Considering these various factors, the Board finds that the evidence of record does not
show that appellant’s activities on June 22, 2015 at the time of his claimed injury constituted
recreational activities within the performance of duty.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on June 22, 2015.
12

Ricky A. Paylor, supra note 10.

13

See Kenneth B. Wright, supra note 10.

14

Ricky A. Paylor, supra note 10.

15

Id.

16

As to appellant’s reliance on Minter, supra note 2, in that case the Board found that appellant had failed to
establish that an injury during a volleyball game occurred in the performance of duty.

5

ORDER
IT IS HEREBY ORDERED THAT the February 18, 2016 and October 6, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF COMMERCE, NATIONAL
OCEANIC & ATMOSPHERIC
ADMINISTRATION, NATIONAL OCEAN
SERVICE, Silver Spring, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 10-1061
Issued: December 13, 2010

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant filed a timely appeal from a February 1, 2010 decision of the
Office of Workers’ Compensation Programs denying her occupational disease claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal, appellant contends that a June 10, 2008 incident, preceded by a pattern of
harassment and reprisals, caused her claimed condition.
FACTUAL HISTORY
On February 6, 2009 appellant, then a 60-year-old editor analyst, filed an occupational
disease claim for anxiety due to discrimination, harassment, disparate treatment, reprisals and a

hostile work environment on or before June 11, 2008. Her supervisor noted that her position
required coordinating correspondence. Appellant’s supervisor stated that he could not confirm
her allegations. Appellant stopped work on June 11, 2008 and did not return.
In February 17 and March 20, 2009 letters, appellant noted that she filed an Equal
Employment Opportunity (EEO) Commission complaint for “ongoing discrimination (reprisal).”
She submitted documents regarding the status of the complaint.
In an April 7, 2009 letter, the Office advised appellant of the additional evidence needed
to establish her claim, including a detailed description of the identified work factors and a
medical report from her attending physician explaining any causal relationship between those
factors and the claimed emotional illness.
In an April 18, 2009 letter, appellant responded that on June 10, 2008 she received an
e-mail from a supervisor requesting that she not include extraneous e-mails in outgoing
correspondence. She characterized the supervisor’s e-mail as an improper attempt to filter and
interfere with her assignments in retaliation for a February 2007 settlement agreement.
Appellant became upset and left to seek medical treatment.
Appellant submitted reports from Dr. Loreto S. Albiol, an attending Board-certified
internist, holding her off work from May 2008 to April 30, 2009 due to anxiety and depression.1
By decision dated September 18, 2009, the Office denied the claim on the grounds that
appellant failed to establish any compensable factors of employment. It found that she
established as factual that she received e-mails on June 10, 2008 and on prior occasions advising
her not to include extraneous e-mails in outgoing correspondence. The Office found that
supervisory evaluation of appellant’s work was not a compensable employment factor as no
administrative error or abuse was shown. It further found that she did not establish her
allegations of disparate treatment, harassment, retaliation, reprisals or a hostile work
environment.
In a September 26, 2009 letter, appellant requested a review of the written record. She
asserted that she included only necessary material in her correspondence. Appellant alleged that
her supervisors were attempting to filter her work assignments as part of unlawful and criminal
reprisals.
Appellant submitted a September 14, 2009 report from Dr. Smita Patel, an attending
Board-certified psychiatrist, diagnosing major depression. She also provided correspondence
showing that the EEO claim remained unresolved.2

1

Appellant also submitted reports from a social worker which do not constitute medical evidence. Sedi L.
Graham, 57 ECAB 494 (2006) (the reports of a social worker do not constitute competent medical evidence, as a
social worker is not a physician as defined by 5 U.S.C. § 8101(2) of the Act).
2

Appellant submitted July 8, July 9 and December 11, 2009 letters from the employing establishment denying
leave and transfer requests made in 2009. She also provided a chronology of events related to an occupational
hearing loss claim. These documents do not address the identified work factors.

2

By decision dated February 1, 2010, an Office hearing representative affirmed the denial
of appellant’s emotional condition claim on the grounds that she did not establish any
compensable factors of employment. The hearing representative found that she did not provide a
detailed statement of the alleged work factors other than the June 10, 2008 e-mail, an
administrative matter where no error or abuse was shown.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 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.4
Generally, an employee’s emotional reaction to administrative or personnel actions taken
by the employing establishment is not covered because such matters pertain to procedures and
requirements of the employer and are not directly related to the work required of the employee.5
An administrative or personnel matter will be considered to be an employment factor, however,
where the evidence discloses error or abuse on the part of the employing establishment.6 An
employee’s frustration from not being permitted to work in a particular environment or to hold a
particular position is not compensable.7 Likewise, an employee’s dissatisfaction with perceived
poor management is not compensable under the Act.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 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
3

5 U.S.C. §§ 8101-8193.

4

Lillian Cutler, 28 ECAB 125 (1976).

5

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

6

See James R. Norris, 52 ECAB 93 (2000).

7

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

8

Id.

9

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

3

record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.10
The Board has held that incidents of discrimination, harassment or retaliation by
supervisors and coworkers, if established as occurring and arising from the employee’s
performance of his or her regular duties, could constitute employment factors.11 To give rise to a
compensable disability under the Act, there must be probative and reliable evidence that
harassment or discrimination did in fact occur.12 Mere perceptions of harassment, retaliation or
discrimination are not compensable under the Act.13
ANALYSIS
Appellant alleged that she sustained an anxiety condition as a result of employment
incidents which the Office found to be noncompensable. Therefore, the Board must review
whether the alleged incidents are covered employment factors under the terms of the Act.
The Board notes that appellant did not attribute her emotional condition to her regular or
specially assigned duties under Cutler. Appellant attributed her emotional condition, in part, to a
June 10, 2008 e-mail from her supervisor requesting that she not append certain e-mails to
outgoing correspondence. However, the Board has characterized supervisory discussions or
evaluations of job performance as administrative or personnel matters, covered only when error
or abuse is established.14 In determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.15 To
support such a claim, a claimant must establish a factual basis by providing probative and
reliable evidence.16 In this case, appellant did not submit a copy of the June 10, 2008 e-mail or
any evidence corroborating her allegations of impropriety. As she did not establish that the
supervisor’s e-mail constituted error or abuse, she did not establish a compensable factor of
employment in this respect.
Appellant also contended that the June 10, 2008 e-mail was an illegal attempt to filter or
interfere with her work. However, an employee’s dissatisfaction with the way a supervisor
performs his or her duties or exercises discretion in assigning work is not compensable absent
administrative error or abuse.17 Appellant did not submit any evidence corroborating her
allegations of improper supervisory actions. The Board has held that mere allegations, in the
10

Id.

11

Janice I. Moore, 53 ECAB 777 (2002). See David W. Shirey, 42 ECAB 783 (1991).

12

Janice I. Moore, id.

13

Kim Nguyen, 53 ECAB 127 (2001).

14

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

15

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

16

See Barbara J. Nicholson, 45 ECAB 843 (1994).

17

Donney T. Drennon-Gala, 56 ECAB 469 (2005); Linda J. Edward-Delgado, 55 ECAB 401 (2004).

4

absence of factual corroboration, are insufficient to meet a claimant’s burden of proof.18
Therefore, appellant has not established a compensable work factor in this regard.
Appellant also attributed her condition to a pattern of harassment, disparate treatment and
reprisals related to a February 2007 settlement agreement. Incidents of harassment and reprisals,
if established as factual and arising from the employee’s performance of duty, could constitute
employment factors.19 Appellant submitted documents regarding an EEO complaint. She did
not provide a final agreement, finding of wrongdoing or corroboration of any incident of
harassment or reprisal. The absence of such documentation does not support appellant’s
contentions. As she has not established these incidents as factual, she has not established a
compensable employment factor under the Act with respect to the claimed discrimination,
retaliation and disparate treatment.
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty as she failed to establish any compensable factors of
employment. As appellant has not established any compensable work factors, the remainder of
the medical record need not be addressed.20
On appeal, appellant contends that a June 10, 2008 incident, preceded by a pattern of
harassment and reprisals, caused the claimed emotional condition. As stated, she did not submit
sufficient evidence to establish any compensable factor of employment. The Office properly
denied appellant’s claim.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.

18

Bonnie Goodman, 50 ECAB 139 (1998).

19

Janice I. Moore, 53 ECAB 777 (2002).

20

Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2010 is affirmed.
Issued: December 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6