United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland Heights, OH, Employer
__________________________________________

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

Docket No. 11-1154
Issued: December 16, 2011

Case Submitted on the Record

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

JURISDICTION
On April 13, 2011 appellant, through her attorney, filed a timely appeal from a
January 25, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 29, 2010 on the grounds that she had no residuals of
an October 24, 1996 employment injury; and (2) whether appellant established that she had any
continuing employment-related disability or residuals after that date.
On appeal, her attorney asserts that the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 24, 1996 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim alleging that she injured her right shoulder that day while lifting boxes. OWCP accepted
the claim for right trapezius strain and right shoulder impingement. On November 11, 1998
appellant underwent right shoulder arthroscopic surgery. She returned to modified duty on
May 12, 1999 and came under the care of Dr. Antony M. George, a general practitioner.2
On February 20, 2007 appellant began a limited-duty position for four hours daily. She
sustained a recurrence of disability on May 19, 2009 and returned to modified employment for
six hours a day on June 24, 2009. Appellant stopped all work on July 21, 2009 and was placed
on the periodic compensation rolls. On September 29, 2009 Dr. Reuben Gobezie, a Boardcertified orthopedic surgeon, performed a second right shoulder arthroscopic procedure
consisting of subacromial decompression with acromioplasty, extensive debridement and distal
clavicle resection. Appellant did not return to work.
In an October 7, 2009 report, Allyson Brinda, a physician’s assistant and associate of
Dr. Gobezie, described appellant’s postoperative recovery. On December 10, 2009 the
employing establishment notified OWCP that appellant’s disability retirement had been
approved, effective December 4, 2009 and that her limited-duty job remained available.
Dr. George submitted additional reports in which he noted her complaints of right shoulder pain
and soreness. He provided examination findings.
In February 2010, OWCP referred appellant to Dr. Manhal A. Ghanma, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a March 8, 2010 report, Dr. Ghanma
reviewed the medical record, appellant’s report of the history of injury and medical treatment.
He listed appellant’s complaint of constant neck and shoulder pain with stiffness and weakness
in the right arm. Dr. Ghanma provided findings on physical examination of the right shoulder,
noting no swelling or discoloration, no crepitation with range of motion, no evidence of
impingement or instability, no abnormality of the acromioclavicular (AC) joint, the subacromial
bursa, the biceps groove or the head of the humerus and no evidence of atrophy. He provided
shoulder range of motion measurements that demonstrated a decrease on the right when
compared to the left. Dr. Ghanma advised that appellant had no additional diagnosis caused by
the employment injury and that her cervical problems were due to degenerative changes in the
cervical spine and were not a result of the October 24, 1996 employment injury. He indicated
that there were no residuals of the right trapezius strain or right shoulder impingement causally
related to the employment injury and no residuals of the two shoulder procedures other than that
a portion of the clavicle was removed but that this did not cause symptoms on a clinical basis.
2

On February 19, 2002 appellant was granted a schedule award for a three percent impairment of the right upper
extremity and on November 7, 2003 was granted a schedule award for an additional three percent. Following an
appeal to the Board, by order dated August 13, 2003, the Board remanded the case to OWCP for reconstruction and
proper assemblage of the case record. Docket No. 02-1554 By decision dated May 7, 2004, an OWCP hearing
representative set aside the November 7, 2003 decision and remanded the case to OWCP for a second-opinion
evaluation regarding the degree of right upper extremity impairment. On September 10, 2004 appellant was granted
a schedule award for a five percent impairment, for a total impairment of eight percent. On January 26, 2007 she
filed for an additional schedule award.

2

Dr. Ghanma observed that the difference in range of motion related to lack of full effort on
appellant’s part. He concluded that she was not disabled from any type of employment and
could return to full-time duties as a letter carrier without restrictions and that she needed no
further therapy or treatment.
In a March 3, 2010 report, Ms. Brinda advised that appellant was doing well following
the September 2009 surgery. By letter dated March 26, 2010, Dr. George advised that appellant
continued to have loss of range of motion and strength in all direction with pain and spasms
throughout the muscles of the shoulder girdle. He opined that she would never be able to return
to a position that required repetitive or forceful use of the right shoulder.
OWCP found a conflict in medical opinion between Dr. George and Dr. Ghanma
regarding whether appellant had ongoing residuals of her employment injury and whether she
was disabled for employment. On May 10, 2010 appellant was referred to Dr. Ralph Kovach,
Board-certified in orthopedic surgery, for an impartial evaluation. In a May 24, 2010 report,
Dr. Kovach described the October 24, 1996 employment injury and her subsequent treatment.
He noted appellant’s complaint of constant pain in the right trapezius musculature with some arm
pain. Examination of the AC joint revealed no crepitation and no tenderness and there was no
crepitation on movement of the shoulder. Dr. Kovach provided right shoulder range of motion
findings, advised that appellant had no atrophy in the arms, no instability in the shoulder and
negative impingement signs. Reflexes in the upper extremities were normal and there were no
sensory changes. Dr. Kovach advised that careful evaluation of the trapezius revealed no
wasting and muscle spasm was not present. Trigger points were extensively searched for and
none were found. Dr. Kovach noted that shoulder strength testing was 3/5 in all directions but
that appellant made minimal effort in the evaluation. He advised that there was no additional
diagnosis caused by the October 24, 1996 employment injury and that appellant had no residuals
of a right trapezius strain or right shoulder impingement or residuals of the 1998 and 2009
arthroscopic procedures and that she was not totally disabled from any type of employment and
could return to the letter carrier position without physical restrictions. Dr. Kovach noted that she
had postoperative range of motion that was not expected to improve but that she needed no
further therapy or treatment and was at maximum medical improvement.
On August 27, 2010 OWCP proposed to terminate appellant’s compensation benefits
finding that the medical evidence established that her work-related conditions had resolved.
Appellant disagreed with the proposed termination and submitted September 13, 2010
reports, in which Dr. George provided examination findings and noted that he had reviewed
other medical reports that had significant inconsistencies with his physical findings. Dr. George
found that she could not return to work until she had a functional capacity evaluation to assess
her work ability. He stated that Dr. Gobezie also reported that appellant had a prolonged
recovery from surgery and should only be released upon appropriate guidelines.
By decision dated September 30, 2010, OWCP finalized the termination of benefits
effective September 29, 2010. It found that the weight of the medical evidence rested with the
opinion of Dr. Kovach who performed the referee examination.

3

On October 4, 2010 appellant requested reconsideration and submitted additional
treatment notes dated October 11 to December 6, 2010, in which Dr. George reported her
complaint of continued shoulder discomfort, right worse than left. Dr. George advised that she
had limited shoulder range of motion and diagnosed right shoulder strain, status post
supraspinatus, rotator cuff surgery.
In a merit decision dated January 25, 2011, OWCP denied modification of the
September 30, 2010 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 29, 2010. The accepted conditions in this case are
right trapezius strain and right shoulder impingement caused by an October 24, 1996
employment injury. OWCP determined that a conflict in medical evidence had been created
between the opinions of Dr. George, an attending physician, and Dr. Ghanma, an OWCP referral
physician, regarding whether appellant continued to suffer residuals of the employment injury
and as to the extent of any disability. It then properly referred her to Dr. Kovach, Board-certified
in orthopedic surgery, for an impartial evaluation.
In a thorough May 24, 2010 report, Dr. Kovach described the October 24, 1996
employment injury and appellant’s subsequent treatment. He noted her complaint of constant
pain in the right trapezius musculature with some arm pain. On examination of the AC joint,
Dr. Kovach advised that there was no crepitation or tenderness and no crepitation on movement
of the shoulder. He provided right shoulder range of motion findings, advised that appellant had
3

Jaja K. Asaramo, 55 ECAB 200 (2004).

4

Id.

5

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

6

Manuel Gill, 52 ECAB 282 (2001).

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no atrophy in the arms, no instability in the shoulder and negative impingement signs. Reflexes
in the upper extremities were normal and there were no sensory changes. There was no trapezius
wasting, muscle spasm or trigger points. Dr. Kovach noted that appellant made minimal effort in
the strength testing and advised that there was no additional diagnosis caused by the October 24,
1996 employment injury. He indicated that she had no residuals of a right trapezius strain, right
shoulder impingement or of the 1998 and 2009 arthroscopic procedures and that she was not
totally disabled from any type of employment and could return to the letter carrier position
without physical restrictions. Dr. Kovach concluded that appellant needed no further therapy or
treatment and was at maximum medical improvement.
The Board finds that, as Dr. Kovach provided a comprehensive, well-rationalized opinion
in which he clearly advised that any residuals of appellant’s accepted conditions had resolved his
opinion is entitled to the special weight accorded an impartial examiner and constitutes the
weight of the medical evidence.7
The medical evidence appellant subsequently submitted is insufficient to overcome the
weight accorded Dr. Kovach as an impartial medical specialist. In a number of reports,
Dr. George essentially reiterated his findings and conclusion that she continued to be disabled
from the employment injury.8 The Board has long held that reports from a physician who was on
one side of a medical conflict that an impartial specialist resolved, are generally insufficient to
overcome the weight accorded to the report of the impartial medical examiner or to create a new
conflict.9 Dr. George had been on one side of the conflict resolved by Dr. Kovach.
The Board therefore concludes that Dr. Kovach’s opinion that residuals of appellant’s
accepted conditions had ceased is entitled to the special weight accorded an impartial medical
examiner10 and the additional reports from Dr. George are insufficient to overcome the weight
accorded him as an impartial medical specialist regarding whether she had residuals of her
accepted right upper extremity conditions.
OWCP therefore properly terminated her
compensation benefits effective September 29, 2010.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits
effective September 29, 2010, the burden shifted to her to establish that she had any continuing
disability causally related to her accepted right upper extremity injury.11 To establish a causal
relationship between the condition, as well as any attendant disability claimed and the
7

See Sharyn D. Bannick, 54 ECAB 537 (2003).

8

The Board notes that Dr. George referenced Dr. Gobezie. The only medical report of record from Dr. Gobezie
is the September 29, 2009 operative report. The reports from Ms. Brinda do not constitute competent medical
evidence as a physician’s assistant is not considered a physician under FECA. Ricky S. Storms, 52 ECAB
349 (2001).
9

I.J., 59 ECAB 408 (2008).

10

See Sharyn D. Bannick, supra note 7.

11

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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employment injury, an employee must submit rationalized medical evidence, based on a
complete factual and medical background, supporting such a causal relationship.12 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.13 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.14
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with her
October 4, 2010 reconsideration request to establish that she continued to be disabled after
September 29, 2010 due to the October 24, 1996 employment injury.
As discussed above, Dr. Kovach provided a comprehensive report in which he outlined
examination findings and provided a rationalized explanation for his opinion that appellant’s
accepted conditions of right trapezius strain and right shoulder impingement had resolved and
that she could return to her previous letter carrier duties.
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. 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.15
In reports dated October 11 to December 6, 2010, Dr. George again reported appellant’s
complaint of continued shoulder discomfort and advised that she had limited shoulder range of
motion. The Board finds these reports of diminished probative value because they do not contain
sound medical reasoning establishing that she was totally disabled after September 29, 2010 due
to the accepted conditions caused by the October 24, 1996 employment injury.16 Dr. George did
not explain why the 1996 employment injury caused continuing disabling residuals, especially
considering that appellant had two corrective surgical procedures and, as stated earlier, he had
been on one side of the conflict in medical evidence resolved by Dr. Kovach. The reports
submitted on reconsideration are therefore entitled to little probative value and are insufficient to
12

Jennifer Atkerson, 55 ECAB 317 (2004).

13

Id.

14

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

15

20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

16

Sandra D. Pruitt, 57 ECAB 126 (2005).

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meet an employee’s burden of proof to establish that she continues to have work-related
disability due to the accepted conditions.17
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 OWCP met its burden of proof to terminate appellant’s
compensation benefits effective September 29, 2010 on the grounds that she had no residuals of
an accepted condition and that she did not establish that she had any continuing employmentrelated disability or condition after that date causally related to the October 24, 1996
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

S.S., 59 ECAB 315 (2008).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Warrendale, PA,
Employer
__________________________________________

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

Docket No. 18-1774
Issued: March 27, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 19, 2018 appellant filed a timely appeal from a September 5, 2018 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the September 5, 2018 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a July 1, 2018
traumatic injury in the performance of duty, as alleged.
FACTUAL HISTORY
On July 4, 2018 appellant, then a 58-year-old mail handler assistant, filed a traumatic injury
claim (Form CA-1) alleging, on July 1, 2018, he sustained a right shoulder sprain and torn rotator
cuff while in the performance of duty. His supervisor, L.A., reported that appellant was unloading
an all-purpose container (APC) when the gate became stuck. Appellant pulled on it to open it and
injured his right shoulder. He provided a July 2, 2018 statement from L.A., who described
instructing appellant on how to move and close an APC on July 1, 2018. L.A. noted that the
bottom gate became stuck and she was unable to open it. Appellant then tried to pull it out and
she instructed him to leave it alone. The APC was deemed defective and red tagged. L.A. noted
that appellant did not report an injury at that time. Appellant accepted a light-duty position, but
did not return to work as scheduled on July16, 2018.
On July 2, 2018 Dr. Joseph Montibeller, an emergency medicine physician, examined
appellant and diagnosed shoulder sprain. On July 9, 2018 appellant underwent a right shoulder
magnetic resonance imaging (MRI) scan which demonstrated a large full-thickness tear of the
supraspinatus tendon.
On July 16, 2018 Dr. James M. Beierle, Jr., an emergency medicine physician, diagnosed
shoulder pain and rotator cuff tear.
In a July 17, 2018 statement, R.D., the manager of distribution operations, noted that
appellant, a new hire who underwent orientation on June 23 and 24, 2018, reported that he injured
his right shoulder on July 1, 2018. Appellant noted that he felt a pop in his right shoulder while
working with L.A. In a letter dated July 20, 2018, the employing establishment reported that
appellant was removed from employment for unrelated improper conduct on July 19, 2018.
By development letter dated July 24, 2018, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him, and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
On July 6 and 11, 2018 Dr. Scott F. Sheppard, an occupational medicine specialist,
described appellant’s history of injury as occurring at work while he was pulling on a large rack
with both of his arms just below chest level. During the repetitive pulling appellant noted acuteonset of right anterior shoulder and upper arm pain. Dr. Sheppard examined appellant and
diagnosed right shoulder and bicipital pain and strain with full-thickness rotator cuff tear on MRI
scan.
On July 13 and 31, 2018 Dr. Michael Pagnotto, an orthopedic surgeon, examined appellant
due to a right shoulder injury which occurred at work on July 1, 2018. He noted that appellant
tried to move a heavy rusted shelf and felt his shoulder pop. Dr. Pagnotto diagnosed right rotator
cuff tear.

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In a form report dated July 23, 2018, Dr. Christopher H. Emond, a Board-certified
orthopedic surgeon, indicated that appellant injured his right shoulder on July 1, 2018 pulling a
rack. He diagnosed right shoulder rotator cuff tear and opined that appellant could return to lightduty work. In an attending physician’s report (Form CA-20), Dr. Emond reported that appellant
felt a pop in his right shoulder while pulling a heavy drawer at work. He diagnosed rotator cuff
tear and biceps tendinopathy. Dr. Emond indicated by checking a box marked “yes” that he
believed that appellant’s diagnosed condition was caused or aggravated by his employment duties.
He further noted that the mechanism of injury was consistent with that which could cause a rotator
cuff tear. In a July 23, 2018 treatment note, Dr. Emond reported appellant’s right shoulder pain
and noted that he had been injured at work on July 1, 2018. He diagnosed right impingement
syndrome of the shoulder, and right laceration of the muscle and tendons of the rotator cuff of the
right shoulder.
By decision dated September 5, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the July 1, 2018 employment
incident occurred in the performance of duty, as alleged. It noted that he had not responded to its
July 24, 2018 factual development questionnaire.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 or specific condition for which compensation is claimed is 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 an 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 or she actually experienced the employment incident at the
time, place, and in the manner alleged.5 Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.6
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
3

Supra note 1.

4

W.B., Docket No. 18-1133 (issued January 8, 2019); Gary J. Watling, 52 ECAB 357 (2001).

5

P.G., Docket No. 14-1461 (issued February 7, 2019); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB
137 (2005).
6
S.W., Docket No. 18-1653 (issued March 12, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008); D.G.,
59 ECAB 734 (2008).

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be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.7 An employee has not met his or her burden of proof in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established. However, an
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a July 1, 2018
traumatic injury in the performance of duty, as alleged.
Appellant did not describe how his July 1, 2018 employment incident occurred on his
Form CA-1, nor did he provide a consistent narrative statement describing the circumstances of
his alleged employment incident. The record variously indicates that appellant was injured July 1,
2018 while he was pulling on an APC gate, while he was moving a heavy rusted shelf, or while he
was moving a large rack. Appellant provided no specific details further explaining how the alleged
injury occurred.9
In a July 24, 2018 development letter, OWCP informed appellant of the type of evidence
needed to support his claim and provided appellant a questionnaire for his completion. It afforded
him 30 days to respond. Appellant did not submit a further description of how the claimed
employment incident occurred.10 Without a detailed description of the circumstances of the
alleged employment incident, his claim lacks specificity regarding the claimed injury.11 In the
absence of necessary factual evidence, appellant has not established his claim.12
The Board, therefore, finds that appellant has not met his burden of proof to establish his
claim for compensation as he has not established that an employment incident occurred in the
performance of duty on July 1, 2018, as alleged. As appellant has not established that the claimed

7

M.C., Docket No. 18-1278 (issued March 7, 2019); Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A.
McCracken, Docket No. 93-2227 (issued March 9, 1995).
8

L.F., Docket No. 17-0689 (issued May 9, 2018).

9

W.B., supra note 4; S.A., Docket No. 18-0508 (issued July 10, 2018).

10

W.R., Docket No. 16-1251 (issued April 21, 2017).

11

Id.; M.J., Docket No. 17-1810 (issued August 3, 2018).

12

Id.

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incident occurred as alleged, the medical evidence regarding causal relationship need not be
addressed.13
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 met his burden of proof to establish a traumatic
injury in the performance of duty on July 1, 2018, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2019
Washington, DC

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

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

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

13

Id.; S.P., 59 ECAB 184 (2007).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS AND BORDER PATROL,
Mayaguez, PR, Employer
__________________________________________

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

Docket No. 14-1201
Issued: October 8, 2014

Case Submitted on the Record

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

JURISDICTION
On April 29, 2014 appellant filed a timely appeal from a December 23, 2013 merit
decision and a March 28, 2014 nonmerit 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.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a hearing loss
in the performance of duty; and (2) whether OWCP properly denied his request for
reconsideration.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted additional facts. The Board may not consider this evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On October 7, 2013 appellant, then a 59-year-old customs and border patrol supervisor,
filed an occupational disease claim, alleging that he sustained hearing loss in the performance of
duty. He first became aware of his condition and its relation to his federal employment on
August 28, 2013. Appellant did not stop work.
On November 20, 2013 OWCP advised appellant that the evidence submitted was
insufficient to establish that he actually experienced the employment factors alleged to have
caused the injury. It requested that he provide additional information including: whether he
previously filed a claim for hearing loss; all hobbies that involved exposure to loud noise; an
estimate of how many hours a year he engaged in such hobbies; any past problems with hearing
loss and his employment history with details regarding his exposure to loud noise. By letter
dated November 20, 2013, OWCP also requested appellant’s employing establishment to provide
information including: comments from his supervisor; the job sites where noise exposure
occurred; the source of the exposure, decibel and frequency level for each job site and the type of
ear protection used.
In a November 29, 2013 response, appellant noted that he rode motorcycles as a hobby.
He rode for two hours at least 10 Sundays a year, for a total of 60 hours in the past three years.
Appellant did not use hearing protection while riding. He also specified that he did not have a
hearing problem prior to being informed by a Federal Occupational Health Center. Appellant
served in the military from 1972 to 1974, where he was exposed to M-16 firearm noise during
basic training five hours a day for five days with earplug protection. From 1974 to 1985, he
worked for the Puerto Rico police. Appellant was exposed to firearm noise two days a year for
eight hours each day with earmuff protection. From 1987 to the present, he served as an
inspector for the employing establishment. Appellant worked on airport tarmacs, where he was
exposed to heavy continuous noise five days a week for at least five hours a day without any
hearing protection. He also noted that for 15 years during his tenure with the employing
establishment he worked as a firearms instructor. Appellant worked two or three eight-hour
shifts every three months. He stated that for the first 10 years he only used earmuffs, but the
remaining five years both earplugs and earmuffs were required.
In an October 17, 2013 report, Dr. Mark McDowall, an audiologist, diagnosed mild high
frequency sensorineural hearing loss bilaterally. The audiogram tested decibel losses at 500,
1,000, 2,000 and 3,000 hertz and recorded losses of 20, 15, 25 and 35 in the left ear. Testing at
the same levels for the right ear recorded decibel losses of 30, 20, 25 and 40. Appellant also
submitted audiogram reports dated April, 15 1999, November 16, 2000, August 2, 2010,
August 9, 2011 and August 28, 2013.
In response to OWCP’s questionnaire, appellant’s supervisor stated that he agreed with
appellant’s assertions with respect to his occupational exposure occurring after August 2004,
when he became his immediate supervisor. Appellant worked at Mayaguez Port of Entry, which
included a seaport and airport. His supervisor stated that appellant was exposed to high levels of
noise, from trucks, other loud machinery and aviation sources. Appellant’s supervisor advised
that appellant made quarterly trips to the gun range where he was exposed to firearm noise. He

2

noted that employees were required to wear earmuffs and plugs for the inner ear at the gun range,
but stated that there were periods when only earmuffs were required.
By decision dated December 23, 2013, OWCP denied appellant’s claim. It found the
evidence was insufficient to establish that the occupational exposure occurred as he described.
Further, the medical evidence failed to contain a diagnosis from a qualified physician. OWCP
noted that appellant and the employing establishment did not provide a full description of his
employment and hobby history as required to obtain a complete factual background.
Following OWCP’s decision, appellant submitted an October 31, 2013 audiogram signed
by Dr. Nancy Sahakian, Board-certified in family and occupational medicine. The report noted
that there was a significant change from his 2005 baseline audiogram. On January 22, 2013
appellant submitted a request for reconsideration and a letter stating that he would send
additional information.
By decision dated March 28, 2014, OWCP denied appellant’s request for reconsideration
without further merit review.
LEGAL PRECEDENT ISSUE 1
An employee seeking benefits under FECA has the burden 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, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions 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 upon a traumatic injury or an occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, 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
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

Gregory J. Reser, 57 ECAB 277 (2005).

3

Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. 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.7
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.8
ANALYSIS ISSUE 1
The Board finds that this case is not in posture for decision.
In its December 23, 2013 decision, OWCP found that appellant provided insufficient
detail of his noise exposure history to establish a complete factual background for his claim. It
also found that the employing establishment’s statement was insufficient to establish the factual
aspect of the claim. The Board notes that appellant provided a statement in response to OWCP’s
request in which he addressed his exposure to noise from all sources. While OWCP found his
description insufficiently detailed with regard to sources of noise outside of his federal
employment, the record clearly supports that he was exposed to noise when he worked on an
airplane tarmac and occasionally on a gun range. The employing establishment generally
supported appellant’s depiction of his workplace noise exposure. It did not contest any part of
his statement. There is no persuasive evidence which refutes that appellant had noise exposure at
work.9 The Board finds that he has sufficiently established his exposure to noise at work.
OWCP denied the claim, in part, on the failure of the employing establishment to provide
sufficient description of appellant’s employment history. The Board has held that proceedings
under FECA are not adversarial in nature and OWCP is not a disinterested arbiter. While the
claimant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence, particularly when such evidence is of the character normally
obtained from the employing establishment or other government source.10 The Board will
remand the case to OWCP for further development of the factual and medical evidence. OWCP
should obtain any further factual evidence needed from the employing establishment, as well as
any further clarification from appellant. Thereafter, it should prepare a statement of accepted
facts that lists his history of noise exposure. OWCP should then refer appellant to an appropriate
Board-certified specialist to obtain a rationalized medical opinion regarding whether he sustained

7

I.J., 59 ECAB 408 (2008); supra note 4.

8

James Mack, 43 ECAB 321 (1991).

9

See supra note 6 (an employee’s statement regarding the occurrence of an employment incident will stand
unless refuted by strong or persuasive evidence).
10

Robert A. Redmond, 40 ECAB 796, 800 (1989).

4

a hearing loss causally related to factors of his federal employment.11 Following this and any
other further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s claim.
Given the Board’s holding with respect to the first issue presented, the second issue
related to the denial of appellant’s request for reconsideration is moot.
CONCLUSION
The Board finds that this case is not in posture for decision
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2014 and December 23, 2013
decisions of the Office of Workers’ Compensation Programs are set aside. The case is remanded
for further action in conformance with this decision.
Issued: October 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

See Federal (FECA) Procedure Manual, Part 3
3.600.8(a) (September 1995) (provides that, unless the
fully meets OWCP requirements. OWCP will refer
examination which addresses the relationship of any
permanent impairment).

-- Medical, Requirements for Medical Reports, Chapter
case file already contains a reliable medical report which
the claimant for audiological evaluation and ontological
hearing loss to the employment and the degree of any

5


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

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Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1200
Issued: May 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 5, 2015 appellant, through his representative, filed a timely appeal from a
March 9, 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish disability for the
period April 17, 2005 through April 4, 2014, causally related to his March 6, 2002 employment
injuries.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its March 9, 2015 decision.
The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

On appeal, appellant’s representative contends that OWCP had vacated two prior
termination decisions dated March 31 and April 15, 2005 and appellant was, therefore, entitled to
continuing compensation benefits during the period claimed.
FACTUAL HISTORY
OWCP accepted that appellant, a 49-year-old part-time flex (PTF) rural carrier, sustained
a left hip strain, groin strain, left hip contusion and aggravation of traumatic arthropathy of the
pelvis and left hip due to a slip and fall while delivering mail on March 6, 2002. Appellant was
placed on the periodic rolls and received appropriate compensation benefits.
On November 6, 2002 OWCP advised appellant that the offered modified rural carrier
position was suitable and was provided 30 days to accept the position. By decision dated
December 20, 2002, it terminated appellant’s compensation benefits, effective December 28,
2002, he had refused suitable work.3
On July 24, 2003 appellant requested reconsideration. By decision dated August 6, 2003,
OWCP denied modification of its prior decision. Appellant requested reconsideration for a
second time on August 8, 2003. In a decision dated August 29, 2003, OWCP found that the
November 6, 2002 job offer was no longer valid because Dr. Michael Taba, a Board-certified
orthopedic surgeon and appellant’s attending physician, had rescinded the work restrictions. It
advised appellant that he was eligible to apply for continuing work-related compensation. By
letter dated October 17, 2003, appellant was returned to the periodic rolls effective
December 29, 2002.
In a February 9, 2005 letter, OWCP found a nixie clerk position suitable in accordance
with work restrictions provided by Dr. Robert Holladay, an impartial medical examiner, in his
December 16, 2004 report. It noted that both its second opinion physician, Dr. Robert Chouteau,
and its referee physician, Dr. Holladay, concurred that appellant was capable of working eight
hours per day with restrictions. The employing establishment confirmed that the position
remained available. OWCP afforded appellant 30 days to accept the position or provide his
reasons for refusal and advised that an employee who refuses an offer of suitable work without
reasonable cause is not entitled to compensation. Appellant did not accept the position.
On March 31, 2005 OWCP terminated appellant’s wage-loss compensation benefits and
schedule award eligibility, effective April 17, 2004, for refusing an offer of suitable work under
5 U.S.C. § 8106(c)(2). By decision dated April 15, 2005, it modified its prior termination
decision to reflect the correct effective date of April 17, 2005.
On June 11, 2007 appellant requested reconsideration and submitted electromyography
(EMG) and nerve conduction velocity (NCV) studies dated September 15, 2005 which revealed
left S1 radiculopathy. He also submitted an October 11, 2006 report from Dr. Richard Buch, an
orthopedic surgeon, who indicated that appellant had a left total hip replacement. On May 12,
3

On January 31, 2003 appellant requested an oral hearing before an OWCP hearing representative. By decision
dated March 27, 2003, OWCP found that appellant’s request was untimely filed and could be equally well addressed
by requesting reconsideration.

2

2005 Dr. Taba requested approval for appellant’s surgery based on his worsening symptoms on
clinical examination. In a July 17, 2005 report, he clarified that he had initially taken appellant
off work on April 3, 2002 but that on April 4, 2002 he had rescinded. Dr. Taba reiterated that
appellant had serious orthopedic problems that were worsening and needed medical attention as
soon as possible.
In reports dated June 9, 2005 through June 25, 2007, Dr. Louis Zegarelli, a family
practitioner, asserted that appellant stepped out of a truck at work when his right leg slipped
forward causing him to fall backwards onto the ground suffering multiple injuries. He diagnosed
lumbar radicular syndrome on the left, left S1 radiculopathy/radiculitis, posterior facet syndrome,
persistent cervicothoracic dysfunction, and mechanical left shoulder pain of undetermined origin,
ruling out internal derangement.
By decision dated July 16, 2007, OWCP denied appellant’s request for reconsideration as
it was untimely filed and failed to present clear evidence of error.
On April 15, 2014 appellant, through his representative, again requested reconsideration
and submitted an electronic funds transfer (EFT) form dated April 15, 2014. He further
submitted a January 19, 2007 magnetic resonance imaging (MRI) scan of the lumbar spine, a
September 14, 2007 electrodiagnostic examination, an April 8, 2008 electromyography (EMG)
and nerve conduction velocity (NCV) studies, a September 25, 2008 MRI scan of the cervical
spine, a September 16, 2010 MRI scan of the left shoulder, an October 4, 2010 lumbosacral xray, and an October 9, 2012 MRI scan of the lumbar spine which showed an abnormal disc at
L5-S1.
Appellant submitted reports and progress notes from Dr. Taba including a December 21,
2007 attending physician’s report (Form CA-20) diagnosing lumbar sprain, hip/thigh sprain, and
contusion of the hip and opining that appellant was totally disabled for work from March 6, 2002
to present. On March 26, 2008 Dr. Taba asserted that appellant was having “a lot of numbness
down his leg, which [was] probably related to his back.”
On May 17, 2007 Dr. Aaron Lloyd, a Board-certified anesthesiologist, found that
appellant’s symptomatology was most consistent with facet syndrome. He opined that the direct
strike on the back associated with appellant’s fall off the truck on March 6, 2002 “may very well
have been the initial causative injury.”
In reports dated July 23, 2007 through May 6, 2010, Dr. Zegarelli reiterated his diagnoses
and opined that appellant’s conditions were causally related to his March 6, 2002 employment
injury. On May 28, 2008 Dr. Zegarelli explained that any left-sided pain appellant experienced
was “emanating from the lumbar spine region with referral into the left hip/leg area.” He
asserted that appellant’s lumbosacral symptoms continued to persist and caused him to be totally
disabled for work from September 3, 2008 to the present.
On February 20, 2008 a nurse practitioner diagnosed lumbar spondylosis, lumbar facet
syndrome, and neck pain.
In reports dated April 5, 2010 through January 22, 2013, Dr. Edward Wolski, a
physiatrist, diagnosed left hip and thigh sprain, cervical sprain, cervical disc displacement,
3

thoracic sprain, lumbar sprain, low back pain, sciatica, lumbar disc displacement, pain in left
limb, back contusion, left hip contusion, left iliofemoral sprain, traumatic arthropathy of pelvis,
right partial thickness rotator cuff tear, and spondylosis without myelopathy. He asserted that
appellant slipped in the back of his mail truck and landed on the left hip and low back on a sharp
corner where the bed of the truck transitioned into the bumper. Appellant also struck the back of
his head on a package. Dr. Wolski reported that appellant had a total hip replacement in 2004
and had been unable to return to work since the date of injury due to severe pain. He opined that
appellant continued to have chronic pain and psychological problems related to his work injury
and was totally disabled for work.
On May 10, 2010 a licensed marriage and family therapist found that results of a mental
health evaluation suggested that appellant was a candidate for a return to work rehabilitation
program.
A functional capacity examination (FCE) dated May 10, 2010 demonstrated that
appellant was capable of part-time, sedentary to light-duty work with the following restrictions:
occasional lifting and carrying up to 15 pounds.
On April 23, 2014 appellant filed a claim for compensation (Form CA-7) for the period
February 12, 2005 through April 4, 2014.
In a brief dated June 23, 2014, appellant’s representative stated that OWCP had failed to
provide copies of its March 31 and April 15, 2005 decisions to appellant’s then representative
and, therefore, they were not properly issued and should be overturned.4
By decision dated August 1, 2014, OWCP vacated its March 31 and April 15, 2005
suitable work termination decisions as they had not been properly issued.
In a telephone call log dated August 20, 2014, appellant’s representative requested “a
specific date as to when the claimant would be placed on the periodic rolls.” OWCP advised him
that a decision would be rendered before August 29, 2014.
By decision dated August 22, 2014, OWCP denied appellant’s claim for disability for the
period February 12, 2005 through April 4, 2014 as the medical evidence was insufficient to
support disability due to the March 6, 2002 employment injuries.5
On September 19, 2014 appellant, through his representative, requested a review of the
written record.
By decision dated March 9, 2015, an OWCP hearing representative affirmed the
August 22, 2014 decision with modification of the period claimed. She found that appellant’s
4

Appellant’s representative at the time the original decisions were issued was Glenn Tucker.

5

On October 8, 2014 appellant, through his representative, requested authorization for spinal surgery. OWCP
referred him to Dr. Marvin Van Hal, an orthopedic surgeon, for a second opinion evaluation. In his December 30,
2014 report, Dr. Van Hal opined that the proposed surgery was not causally related to appellant’s accepted
conditions.

4

compensation was terminated, effective April 17, 2005. Therefore, the period of denial of
compensation was changed to April 17, 2005 through April 4, 2014.
LEGAL PRECEDENT
Section 8102(a) of FECA6 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”7 This meaning, for brevity, is expressed as disability for work.8
For each period of disability claimed, the employee has the burden of proving that he was
disabled for work as a result of the accepted employment injury.9 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative, and substantial
medical evidence.10
Disability is 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 his
federal employment, but who nonetheless has the capacity to earn the wages he was receiving at
the time of injury, has no disability as that term is used under FECA and is not entitled to
compensation for loss of wage-earning capacity. The Board will not require OWCP to pay
compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish his claim for
disability for the period April 17, 2005 through April 4, 2014, causally related to his employment
injuries. While OWCP accepted that appellant sustained a left hip strain, and contusion, groin
strain, and aggravation of traumatic arthropathy of the pelvis and left hip, appellant bears the
burden to establish through medical evidence that he was disabled during the claimed time
periods and that his disability was causally related to his accepted injuries.12 The Board finds
6

5 U.S.C. § 8102(a).

7

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
8

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

See William A. Archer, 55 ECAB 674 (2004).

10

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

11

Id.

12

See supra notes 9-10. See also V.P., Docket No. 09-337 (issued August 4, 2009).

5

that appellant has submitted no rationalized medical evidence explaining how the employment
injuries materially worsened or aggravated his medical conditions and caused him to be disabled
for work for the period April 17, 2005 through April 4, 2014.
In his reports, Dr. Zegarelli diagnosed lumbar radicular syndrome on the left, left S1
radiculopathy/radiculitis, posterior facet syndrome, persistent cervicothoracic dysfunction, and
mechanical left shoulder pain of undetermined origin and opined that appellant’s conditions were
causally related to his March 6, 2002 work injury. On May 28, 2008 Dr. Zegarelli explained that
any left-sided pain appellant experienced was “emanating from the lumbar spine region with
referral into the left hip/leg area.” He asserted that appellant’s lumbosacral symptoms continued
to persist and caused him to be totally disabled for work from September 3, 2008 to the present.
As Dr. Zegarelli failed to offer any probative medical opinion on whether appellant was disabled
on the dates at issue due to his accepted left hip and groin conditions, his reports are of
diminished probative value.13 Further, OWCP has not accepted that appellant experienced
employment-related spinal or left shoulder conditions under this claim. As such, appellant has
the burden of proof to establish that these conditions are employment related.14 Thus, the Board
finds that the reports from Dr. Zegarelli are insufficient to establish that appellant was disabled
for work due to the employment injuries for the period claimed.
In his reports, Dr. Wolski diagnosed left hip and thigh sprain, cervical sprain, cervical
disc displacement, thoracic sprain, lumbar sprain, low back pain, sciatica, lumbar disc
displacement, pain in left limb, back contusion, left hip contusion, left iliofemoral sprain,
traumatic arthropathy of pelvis, right partial thickness rotator cuff tear, and spondylosis without
myelopathy. He opined that appellant continued to suffer from chronic pain and psychological
problems related to his employment injury and was totally disabled for work. The Board finds
that Dr. Wolski failed to provide a probative medical opinion explaining why appellant was
disabled on the dates at issue due to his accepted conditions. These reports are insufficient to
establish employment-related disability for the claimed period.15
Dr. Taba submitted a December 21, 2007 attending physician’s report (Form CA-20)
diagnosing lumbar sprain, hip/thigh sprain, and contusion of hip and opining that appellant was
totally disabled for work from March 6, 2002 to present. On March 26, 2008 he asserted that
appellant was having “a lot of numbness down his leg, which [was] probably related to his
back.” As Dr. Taba did not address work-related disability for the particular dates at issue, his
reports are of diminished probative value.16 Thus, the Board finds that the reports from Dr. Taba
are insufficient to establish appellant’s claim for compensation.
Appellant also submitted reports from Drs. Buch and Lloyd. The Board finds that this
medical evidence also failed to provide a probative medical opinion on whether appellant was

13

See Sandra D. Pruitt, 57 ECAB 126 (2005). See also V.P., id.

14

See Jaja K. Asaramo, 55 ECAB 104 (2004).

15

Supra note 13.

16

See supra note 13. See also V.P., supra note 12.

6

disabled on the dates at issue due to his accepted conditions.
insufficient to establish appellant’s claim.

Therefore, this evidence is

Appellant also submitted evidence from a nurse practitioner. This evidence does not
constitute competent medical evidence because nurse practitioners are not considered
“physicians” as defined under FECA.17 As such, this evidence is insufficient to meet appellant’s
burden of proof.
The diagnostic reports of record, including the September 15, 2005 and April 8, 2008
electromyography EMG and NCV studies, October 4, 2010 lumbosacral x-ray, and MRI scans
dated January 19, 2007, September 25, 2008, September 16, 2010, and October 9, 2012, are of
limited probative medical value as they do not specifically address whether appellant was
disabled on the dates at issue.18
On appeal, appellant’s representative contends that OWCP had vacated the prior suitable
work termination decisions, dated March 31 and April 15, 2005, and that appellant was,
therefore, entitled to be returned to the periodic rolls during the period claimed. The fact that the
suitable work termination decisions were vacated for having been issued without proper service
does not, by itself, establish work-related disability for the period claimed. Following the
reversal of those decisions, the CA-7 claim was outstanding and OWCP properly evaluated the
medical evidence to determine appellant’s capacity for work. Appellant has not submitted
sufficient rationalized medical evidence establishing that he was disabled for the period April 17,
2005 through April 4, 2014 causally related to his accepted employment injuries. Therefore,
appellant has not met his burden of proof to establish that he remains disabled due to his
accepted employment condition.
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 met his burden of proof to establish disability for
the period April 17, 2005 through April 4, 2014, causally related to his March 6, 2002
employment injuries.

17

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (reports by nurse practitioners and physician’s
assistants are not considered medical evidence as these persons are not considered physicians under FECA). See
also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue
such as causal relationship can only be resolved through the submission of probative medical evidence from a
physician).
18

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).

7

ORDER
IT IS HEREBY ORDERED THAT the March 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 20-1271
Issued: March 9, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 16, 2020 appellant filed a timely appeal from an April 1, 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 her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained several conditions due to work-related
1

5 U.S.C. § 8101 et seq.

stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated cholesterol, and
diabetes. She indicated that she started working as a paralegal specialist for the employing
establishment on October 20, 2014. Appellant maintained that her supervisor, L.M., created a
stressful and hostile work environment as time progressed, and indicated that there were Equal
Employment Opportunity Commission (EEOC) issues. She asserted that L.M. did not like the
way she communicated and asked her if she would quit her job. Appellant noted that she first
became aware of her claimed conditions on October 20, 2014 and first realized their relation to her
federal employment on July 31, 2018. She stopped work on July 17, 2017.
In a June 10, 2019 statement, appellant further discussed her claimed employment-related
conditions and again claimed that her work environment aggravated her health. She maintained
that L.M. intentionally exposed her to a hostile work environment and asked if she was going to
quit “due to circumstances surrounding my employment.” Appellant indicated that, due to
workplace stress, she had to go on leave under the Family and Medical Leave Act (FMLA) in
July 2018 and then had to file for disability retirement in July/August 2018.
Appellant submitted medical evidence in support of her claim, including reports of
Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified
family practitioner. In an August 7, 2018 report, Dr. Dang indicated that appellant reported
experiencing stress in dealing with her supervisor. She discussed appellant’s medical history and
diagnosed, inter alia, unspecified bipolar and related disorder, and depressive disorder with
psychotic features. Appellant also submitted time and attendance summary reports from July and
September 2018.
In a June 25, 2019 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim, including a physician’s opinion supported
by a medical explanation regarding the cause of her claimed emotional condition. It provided a
questionnaire for her completion, which posed questions regarding her claimed employment
factors. OWCP afforded appellant 30 days to respond.
In response, appellant submitted on July 2, 2019, answers to the questionnaire provided by
OWCP. She asserted that L.M. treated her differently on purpose due to her race and that the
harassment was continuous in nature. Appellant asserted that L.M. retaliated against her for filing
an EEOC complaint in 2016.
Appellant submitted documents relating to the EEOC complaint she filed in 2016. In
connection with this claim, she claimed that in October 2015 she was improperly instructed not to
take sick leave for the rest of the year and that in December 2015 she was denied compensatory
time. Appellant also alleged that on December 24, 2015, L.M. accused her of “gaming the system”
when she tried to change her schedule and that on February 15, 2016 she wrongly did not receive
holiday pay. She further claimed that on March 1, 2016 she was approved for reasonable
accommodation that did not address her needs and that on March 30, 2016 L.M. called her
“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal
reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date
her work duties were wrongly reduced and her work was delegated to another employee.

2

Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal
of a September 28, 2017 final EEOC decision denying her claims of discrimination. In this
decision, an EEOC official addressed each of her above-noted claims and found that it had been
properly determined in the prior decision dated September 28, 2017 that the employing
establishment did not subject her to discrimination or other wrongdoing. The official found that
the employing establishment provided reasonable accommodation to appellant for her bipolar
disorder by allowing her to change her schedule and that it appropriately handled matters relating
to sick leave, holiday pay, and compensatory time. Appellant noted that L.M. explained that she
reassigned some of appellant’s tasks to another employee because the work schedule of that
employee made it more suitable for appellant to perform those tasks. The official indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in portable document format (PDF), but that she indicated
she might have stated that it would be stupid to put a draft into PDF. She noted that it was
confirmed that L.M. told appellant that she was “gaming the system” on December 24, 2015 when
appellant attempted to change her schedule in the middle of a pay period to get more holiday time.
The official noted it was established that on September 8, 2016 L.M told appellant that she should
be careful about what she stated to people. In addition, it was established that L.M. asked appellant
whether she intended to quit and that, when appellant stated that she did not, L.M. responded by
saying, “Good.” The official noted that L.M. advised that she was not angry when she made these
statements, but rather wished to provide constructive criticism at a time when appellant was having
difficulties communicating with coworkers. She concluded that, when considering L.M.’s
comments and actions in context, it had not been shown that L.M. subjected appellant to
discrimination or created a retaliatory or hostile work environment.2
By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related
emotional condition. It determined that she had not established a compensable employment factor.
On August 5, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that
there was no person that witnessed or overheard L.M. calling appellant stupid on March 30, 2016.
Appellant explained that she was attempting to send a document and did not realize that it was a
PDF document. She testified that L.M. threw a stapler at her on October 20, 2014 and explained
that L.M.’s actions against appellant progressively worsened and that her statements to appellant
became intolerable. Appellant indicated that L.M. asked her whether she was going to quit and
asserted that her working conditions caused or worsened her medical conditions. She explained
that she had appealed the EEOC decision denying her complaint, but asserted that the ruling was
not in her favor because her complaints were not understood.
After the hearing, additional documents were added to the case record, including the
employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive
absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017
affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10,
2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.

2

Appellant also submitted additional medical evidence in support of her claim.

3

In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable
accommodation to appellant by approving appellant’s request regarding telework days. She noted
that the human resources office advised her that she could not approve appellant’s request to
change appellant’s schedule on short notice in order to receive pay for federal holidays. L.M.
indicated that in December 2015 appellant sent out a draft document as a PDF document despite
the fact that such documents are normally sent out in Microsoft Word format. She noted that she
had a conversation with appellant, who indicated that she had intentionally sent the document as a
PDF document because she thought it was a good idea. L.M. reported that she did not call
appellant stupid, but might have stated that it would be stupid to send the draft in the wrong format.
With regard to appellant’s allegation that she was accused of “gaming the system” with respect to
her request to change her work schedule, L.M. explained that she told appellant that it would be
improper and gaming the system, to change her schedule in the middle of a pay period in order to
receive pay for a holiday. She noted that appellant did not have any accrued sick leave and owed
advanced sick leave. Therefore, L.M. denied appellant’s request for additional advanced sick
leave. She indicated that appellant was advised that she could not take additional advanced sick
leave unless the FMLA covered it. L.M. explained that she had taken similar action towards
another similarly situated employee.
In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,
appellant contested L.M.’s assertion that it was reasonable to deny appellant’s request to change
her workdays to reflect that a given week had a holiday. She claimed that L.M. did, in fact, call
her stupid with respect to the matter involving the PDF document, and expressed her belief that
L.M. was accusing her of theft when she stated that she was gaming the system. Appellant also
generally contested L.M.’s assertions that she had properly handled matters relating to leave usage
and work assignments.
In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant
on September 8 and 15, 2016. She explained that she previously had a discussion with appellant
and another paralegal and needed to follow-up with appellant regarding a September 8, 2016
e-mail that appellant sent about ineffective communication with the other paralegal. L.M.
indicated that she discussed the problems with appellant, but was not angry during the meeting.
She noted that during the second meeting on September 15, 2016 she advised appellant that she
needed to be careful about what she stated to people and consider their points of view. L.M.
indicated that this comment was made in the context of the other paralegal having felt that appellant
made various accusations against her. She also noted that, during this meeting, she asked appellant
if she was considering quitting because of the communication issues and overlapping schedule
problems among the clerks. When appellant indicated that she was not quitting, L.M. noted that
she replied, “Good.” She explained that the following week after the progress review, appellant
told her that she felt that the discussion regarding quitting constituted constructive discharge and
that she felt that she was hostile. L.M. noted that she apologized to appellant and told appellant
that she was trying to speak openly and plainly. She discussed the assignment of work and
explained that all assignments were properly made given the work start times for the various clerks
as well as the fact that appellant did not work well with one of the attorneys. L.M. also explained
that appellant had been cordial towards her and indicated that she, as the supervisor, had remained
cordial towards appellant. She indicated that she did not recall telling appellant that a certain work
assignment was none of her business. L.M. indicated that appellant’s manner of speaking was at

4

times vague and imprecise and she noted that had asked appellant to choose her words more
thoughtfully.
In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that
a work assignment involving redaction of information was none of her business. She restated her
belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she
made improper comments about her communication skills.
The case record was also supplemented to include the original September 28, 2017 final
EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the
full evidentiary record did not establish that L.M. subjected appellant to discrimination or created
a retaliatory or hostile work environment. She found that the employing establishment provided
reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled
matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M.
explained that she reassigned some of appellant’s tasks to another employee because the work
schedule of that employee made it more suitable for her to perform those tasks. She indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated
that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was gaming the system, and that she should be careful about what she stated
to people. In addition, the EEOC decision established that L.M. asked appellant whether she
intended to quit and that, when appellant stated that she did not, L.M. responded by saying,
“Good.” The official concluded that, when considering L.M.’s comments and actions in context,
no improper actions were committed.
By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 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.5
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
3

Supra note 1.

4

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

5
20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).

5

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.7 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.8
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.10
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.11 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence.12

6

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
7

Lillian Cutler, 28 ECAB 125 (1976).

8

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

9

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

10

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

11

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12

Id.

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at work. Therefore, the Board must initially review whether these alleged incidents and
conditions are covered employment factors under the terms of FECA. The Board notes that
appellant’s claim does not directly relate to her regular or specially assigned duties under Lillian
Cutler.13 Rather, appellant claimed that her supervisor, L.M., committed error and abuse with
respect to various administrative/personnel matters. She also claimed that L.M. subjected her to
harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that L.M.
mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable
accommodation requests, and the assignment of work tasks. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.14 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.15 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably.16
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted documents from an
EEOC claim she filed in 2016, which concerned some of these matters, but the communications
did not show that the employing establishment committed error or abuse with respect to these
matters. In fact, the case record contains a September 28, 2017 final EEOC decision, which
discusses many of these administrative matters and finds that L.M. did not engage in any
wrongdoing. The case record also contains an April 16, 2019 final EEOC decision, which affirmed
the findings of the September 28, 2017 decision. These decisions provide a great deal of detail
from L.M’s affidavits (produced in conjunction with the EEOC proceedings and contained in the
present case record) in which she provided reasoning for her handling of various administrative/
personnel matters. Appellant has not otherwise presented evidence, such as another final decision
of an administrative body, to show that L.M. or other managers committed error or abuse with
respect to administrative or personnel matters.17 Although appellant expressed dissatisfaction with
13

See Lillian Cutler, supra note 7.

14
T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
15

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

16

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

17

See generally M.R., Docket No. 18-0304 (issued November 13, 2018).

7

the actions of L.M., the Board has held that mere dislike or disagreement with certain supervisory
actions will not be compensable absent error or abuse on the part of the supervisor.18 She has not
substantiated error or abuse committed by L.M. or other managers in the above-noted matters and,
therefore, she has not established a compensable employment factor with respect to administrative
or personnel matters.
Appellant also alleged harassment and discrimination by L.M. and claimed that she created
a stressful hostile work environment. She asserted that L.M. treated her differently on purpose
due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also
asserted that L.M. made comments and engaged in actions that rose to the level of harassment and
discrimination. For example, she alleged that L.M. called her stupid with respect to her production
of a PDF document, effectively threatened her job security by asking her whether she intended to
quit, and told her that a given work assignment was none of her business. To the extent that
disputes and incidents alleged as constituting harassment are established as occurring and arising
from an employee’s performance of his or her regular duties, these could constitute employment
factors.19 The Board has held that unfounded perceptions of harassment do not constitute an
employment factor.20 Mere perceptions are not compensable under FECA and harassment can
constitute a factor of employment if it is shown that the incidents constituting the claimed
harassment actually occurred.21
The Board notes that many of appellant’s claimed instances of harassment/discrimination
were extensively discussed in the aforementioned September 28, 2017 and April 16, 2019 final
EEOC decisions. It had been determined in these decisions that L.M. did not subject appellant to
discriminatory, retaliatory, or otherwise improper actions, and that L.M. did not create a hostile
work environment. For example, it was determined that there was insufficient evidence to
establish appellant’s allegations that L.M. called her stupid or told her that a given work
assignment was none of her business. Moreover, there was insufficient evidence to show that L.M.
threatened appellant’s job when she asked appellant if she intended to quit her job. Rather, she
explained that she asked the question due to concern for appellant’s welfare and had, in fact,
responded, “Good,” when appellant indicated that she did not wish to quit. Similarly, L.M.
acknowledged that she told appellant that she had to be careful about what she stated to other
people and that she had to choose her words carefully, but she explained that she intended to
provide appellant with benevolent advice rather than to punish her. Appellant has not submitted
sufficient documentary evidence to show that L.M. subjected her to harassment or
discrimination.22 As noted, she submitted final EEOC decisions, but these decisions do not support
her claims of wrongdoing by L.M. or other managers. Although it has been established that L.M.
made certain comments described above, appellant has not established that these isolated

18

T.C., Docket No. 16-0755 (issued December 13, 2016).

19

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

20

See F.K., Docket No. 17-0179 (issued July 11, 2017).

21

See id.

22

See B.S., Docket No. 19-0378 (issued July 10, 2018).

8

comments rose to the level of harassment or discrimination.23 Appellant also has not submitted
sufficient evidence to establish her harassment/discrimination claims that were not discussed in
the final EEOC decisions, such as her claim that L.M. threw a stapler at her. Therefore, she has
not established a compensable employment factor with respect to the claimed harassment and
discrimination.
On appeal, appellant, argues that her emotional condition claim should have been accepted
because she established compensable employment factors and the evidence of record establishes
that she is disabled. However, the Board has explained that she has not established a compensable
employment factor. As the Board finds that appellant has not established a compensable
employment factor, it is not necessary to consider the medical evidence of record.24
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 met her burden of proof to establish that she
sustained an emotional condition in the performance of duty, as alleged.

23

See generally C.T., Docket No. 08-2160 (issued May 7, 2009) (finding that some statements may be considered
abusive and constitute a compensable factor of employment, but that not every statement uttered in the workplace will
be covered by FECA). The Board notes that L.M. indicated that she might have stated in appellant’s presence that it
would be stupid to put a draft into PDF. However, it has not been established that such a comment was actually made
or that it would rise to the level of harassment or discrimination even if it had been made.
24

See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors). See also Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

9

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 9, 2021
Washington, DC

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

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

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

10