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

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

Docket No. 09-2194
Issued: September 23, 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 August 31, 2009 appellant filed a timely appeal from the July 24, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her 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 was disabled eight hours a day on the
dates she attended physical therapy from April 21, 2008 to January 26, 2009.
FACTUAL HISTORY
On February 12, 1997 appellant, then a 44-year-old mail processing clerk, filed an
occupational disease claim for muscle strain and groin pain from lifting mail trays. The Office
accepted the claim for a groin strain and paid benefits. On February 22, 2000 appellant filed a
claim for a herniated lumbar disc that she attributed to her work duties. The Office accepted the
condition of lumbar disc displacement.
Appellant returned to limited-duty work on
1
April 27, 2005. The Office paid compensation for intermittent periods of disability from
1

On December 21, 2005 the Office found that appellant’s actual earnings as a rehabilitation mail processor fairly
and reasonably represented her wage-earning capacity and reduced her compensation to zero.

September 27, 2005 to November 11, 2007.
Appellant returned to limited duty on
November 12, 2007 with a scheduled reporting time of 10:00 p.m.2
After appellant returned to limited-duty work, she attended physical therapy under the
direction of her attending physician two days a week. The record reflects that the Office paid
410 hours of wage loss for physical therapy appointments from April 28, 2008 to
January 26, 2009.3 Appellant filed claims for compensation on the days she attended physical
therapy appointments for the period April 21, 2008 through January 26, 2009. On September 22,
October 10 and 28, 2008 time analysis forms, she claimed eight hours leave without pay
(LWOP) for the dates of September 8, 12, 15, 19, 22, 26 and 29, 2008 and October 3, 6, 9, 10,
13, 17, 20, 24 and 27, 2008 to attend physical therapy. Appellant contended that she was entitled
to eight hours of wage loss on the days she attended physical therapy. She also attributed her
disability to sitting in the wrong chair and strain to her lower back. Physical therapy notes and
notes from Witold Mierzwa, a physical therapist, establish she was seen on the claimed dates.
In an April 12, 2008 report, Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon,
stated that appellant had increased neck pain and left-sided low back pain and was unable to
work the previous night. He diagnosed cervical disc derangement, bilateral shoulder
derangement and lumbar disc herniation. Dr. Chmell advised that appellant could return to work
on April 15, 2008. In a May 3, 2008 report, he stated that appellant was attending therapy three
days a week and that she “does have to miss work when she is attending therapy.” Appellant
reported improving symptoms. Dr. Chmell advised that appellant could continue working with
restrictions “but miss work for therapy.” In a June 14, 2008 treatment note, he recommended an
ergonomic chair and continued physical therapy. In a June 14, 2008 attending physician’s
report, Dr. Chmell noted that, since April 21, 2008, appellant missed work two to three times a
week to attend physical therapy. An August 23, 2008 treatment note advised that appellant
continued working with restrictions and stated that she “may have periods of incapacity.”
Dr. Chmell recommended that she should continue with physical therapy.
In a September 20, 2008 report, Dr. Chmell reiterated that appellant attend physical
therapy for her shoulder, neck and low back conditions. He stated that she continued to have low
back pain and tightness and worked with restrictions. Dr. Chmell diagnosed lumbar disc
derangement, cervical disc derangement and bilateral shoulder derangement. He recommended
physical therapy twice a week and work within restrictions. Dr. Chmell stated that appellant
needed an ergonomic custom chair for low back support and noted that she might have periods of
incapacity. On September 22, 2008 he explained why appellant needed physical therapy.
Dr. Chmell noted recommending for several years that she have an ergonomic chair.
In an October 25, 2008 progress note, Dr. Chmell stated appellant was recently exposed
to cold blowing air at work and her right shoulder and arm became painful. Appellant
telephoned his office and it was determined that she was fully incapacitated for duty on
2

The Office issued schedule awards on February 9, 2006, July 20, 2007 and May 28, 2008 for three percent left
leg impairment and 11 percent right leg impairment.
3

The Office paid 126 hours of wage loss from April 28 to June 13, 2008, 112 hours from June 8 to August 8,
2008, 64 hours from August 11 to September 5, 2008, 16 hours of wage loss from September 8 to October 27, 2008,
24 hours from October 31 to November 24, 2008, 16 hours from December 1 to 12, 2008 and 52 hours from
December 15, 2008 to January 26, 2009, or four hours for each day claimed.

2

October 23, 2008 and was put on bed rest. Dr. Chmell noted examination findings and
diagnosed lumbar disc derangement, cervical disc derangement and bilateral shoulder
derangement. In an October 25, 2008 work statement, he indicated that appellant was totally
disabled on October 23, 2008 due to her lumbar disc derangement, cervical disc derangement
and bilateral shoulder derangement. Duty status and progress reports from Dr. Chmell for
treatment on September 20 and November 15, 2008 were provided.
In an October 27, 2008 letter, Gwendolyn Edwards, an employing establishment human
resources management specialist, noted appellant attended physical therapy at 3:00 p.m., and no
time was lost from work due to the scheduled therapy appointments. She stated that appellant
stopped work after she was notified of the employing establishment’s intention to reduce the
amount of time lost from work.
On November 17, 2008 Dr. Chmell advised that appellant attended physical therapy
twice a week due to her work injuries and this allowed her to keep working. He questioned why
appellant was not allowed time off work to attend physical therapy. Dr. Chmell noted an
alternative was to take her off work completely so she would not be “hassled” regarding therapy.
He requested that she be accommodated with paid time off for treatment of her work injuries.
In a December 3, 2008 report, Dr. Chmell addressed appellant’s treatment for her work
injuries of April 21, 1999. Appellant had been working with restrictions since that time and had
periodic flare-ups of her injuries, particularly in her low back. Dr. Chmell stated that she was in
the midst of such a flare-up and attended physical therapy twice a week, which enabled her to
continue work but she had difficulty because she was not allowed to take time off twice a week
for therapy. He again suggested an alternative would be to take her off work completely so she
would not be “hassled” with regard to therapy.
In a December 12, 2008 letter, the Office notified appellant that physical therapy visits
were only authorized for a maximum of four hours. It requested that she provide medical
evidence that she attended physical therapy on the dates claimed as well as a rationalized report
from her treating physician which provided an opinion regarding the relationship of her ability to
work and her accepted work-related conditions.
In a December 10, 2008 note, the physical therapist indicated that appellant attended
therapy on November 3, 5, 11, 14, and 17, 2008 and was scheduled for November 21, 24
and 28, 2008. Handwritten notations from a Ms. Hickens indicate that appellant used eight hours
of sick leave a day on November 11 and 14, 2008 and used four hours of sick leave on
November 17, 2008. She noted no verification sheets were submitted that showed arrival and
departure times, even though appellant was instructed to provide such information and forms had
been mailed to her. In a December 12, 2008 note, Ms. Edwards asserted that appellant lost no
time from work due to scheduled therapy appointments. She reiterated that appellant stopped
work after she was notified of the employer’s intention to reduce the amount of time lost from
work.
In a December 17, 2008 letter, Dr. Chmell advised that appellant’s condition was not a
recurrence as she had back pain since her injury. Over the prior months, her pain became more
intense which initially necessitated a period of incapacity and required her to attend physical
therapy. Dr. Chmell noted that appellant told him she was not allowed to take time off work to
3

attend physical therapy. On December 20, 2008 he reiterated that appellant should have a
custom-measured support chair.
A physical therapist verified that on October 24, 2008 appellant was seen from 3:00 p.m.
to 5:25 p.m.; on October 7, 2008 appellant was seen from 4:00 p.m. to 5:50 p.m.; on October 31,
2008 she was seen from 5:00 p.m. to 6:55 p.m.; on November 5, 2008 she was seen from 5:00
p.m. to 7:18 p.m.; on November 8, 2008 she was seen from 2:30 p.m. to 4:00 p.m.; on
November 11, 2008 she was seen from 11:30 a.m. to 1:48 p.m.; on November 16, 2008 she was
seen from 3:00 p.m. to 5:10 p.m.; on November 17, 2008 she was seen from 4:00 p.m. to 5:55
p.m. and on November 24, 2008 she was seen from 4:10 p.m. to 6:06 p.m.
In a February 4, 2009 decision, the Office denied appellant’s claim of disability
beginning April 21, 2008. It found that the medical evidence did not provide a well-rationalized
statement with objective medical findings to support that her disability was causally related to
her April 21, 1999 work injury. The Office found it unreasonable to need time off for physical
therapy appointments when her work hours were from 10:00 p.m. to 6:30 a.m.
On February 9, 2009 appellant requested a telephonic hearing that was held on
June 2, 2009. She advised that she worked nights from 10:00 p.m. to 6:30 a.m. and attended
physical therapy around 3:00 p.m. for two to three hours. Appellant was taken off work as of
April 21, 2008 as her physician did not want her to work after physical therapy because her chair
at work caused back problems. When she went to work after physical therapy, her back stiffened
while sitting in the chair and she could barely stand. Appellant noted her job was sedentary and
that she would get up and move to prevent her back from locking up. She had physical therapy
from April 2008 to January 26, 2009. Appellant noted that she maintained a full-time work
schedule with intermittent days off since January 26, 2009. Her attorney argued that she had
back pain because of her current chair.
In a January 3, 2009 prescription note, Dr. Chmell reiterated that appellant needed a
custom ergonomic chair. In a February 14, 2009 progress note, he advised that appellant worked
a night shift and had not been provided with the proper seating which resulted in gradually
increasing back pain though she was not doing anything strenuous. Dr. Chmell attributed her
back pain to an inappropriate chair. On March 9, 2009 he reiterated that appellant needed
appropriate support seating for her permanent low back injury. Dr. Chmell predicted that she
would have periods of incapacity such as that which began on April 21, 2008 if she did not have
prescription supportive back seating. He stated that such periods of incapacity would become
more frequent. Dr. Chmell indicated that she had flare-ups of her original injury as no
supportive back seating had been provided. In a June 20, 2009 letter, he reiterated that appellant
still needed an ergonomic chair and, because she had not received it, she had a flare up of back
pain that disabled her from June 15 to 21, 2009.
By decision dated July 24, 2009, an Office hearing representative affirmed the
February 4, 2009 decision. The hearing representative noted that, since January 26, 2009,
appellant maintained a full work schedule.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim by the weight of the evidence.5
Under the Act, the term disability is defined as an inability, due to an employment injury, to earn
the wages the employee was receiving at the time of injury, i.e., an impairment resulting in loss
of wage-earning capacity.6 For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled for work as a result of the accepted employment injury.7
Whether a particular injury caused an employee disability for employment is a medical issue
which must be resolved by competent medical evidence.8 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 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow an employee to self-certify their
disability and entitlement to compensation.10
An injured employee is entitled to compensation for lost wages incurred while obtaining
authorized medical services.11 This includes the actual time spent obtaining the medical services
and a reasonable time spent traveling to and from the medical provider’s location.12 As a matter
of practice, the Office generally limits the amount of compensation to four hours with respect to
routine medical appointments.13 However, longer periods of time may be allowed when required
by the nature of the medical procedure and/or the need to travel a substantial distance to obtain
the medical care.
ANALYSIS
The Office accepted that appellant sustained a groin strain and lumbar disc displacement
in the performance of duty. Appellant returned to limited-duty work on November 12, 2007 and
worked a shift that began at 10:00 p.m. She underwent physical therapy at the direction of her
attending physician two days a week during the period April 21, 2008 to January 26, 2009. The
4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Prince E. Wallace, 52 ECAB 357 (2001).

7

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

8

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

9

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

10
11

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).
5 U.S.C. § 8103(a) (2006); see Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(December 1995).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).

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Office paid appellant four hours of wage-loss compensation for each day claimed or a total of
410 hours of wage loss. Appellant contends that she is entitled to eight hours of wage-loss
compensation for the days she attended physical therapy. The employing establishment noted
that her tour of duty was 10:00 p.m. to 6:30 a.m. and that she did not take time off from work to
attend the physical therapy sessions. Appellant stated that she attended physical therapy in the
late afternoons and contended she was often disabled thereafter from going to work.
In support of her claim for intermittent disability beginning April 21, 2008, appellant
submitted multiple treatment notes and reports from Dr. Chmell who indicated that she required
physical therapy for her shoulder, neck and low back conditions and that she might have periods
of incapacity as an ergonomic chair was needed for her back. In reports and treatment notes
from April 12 to September 20, 2008, Dr. Chmell generally indicated that appellant might have
periods of incapacity and needed to miss work for physical therapy but he did not indicate
whether she was totally disabled from her light-duty position on specific dates during the period
at issue due to her accepted injuries. While he indicated in his November 17, 2008 report that
physical therapy was needed to enable appellant to continue working, Dr. Chmell appeared to be
under the erroneous impression appellant was not allowed time off work to attend her physical
therapy appointments.14 As noted, appellant attended physical therapy in the late afternoons and
was not scheduled to work until 10:00 p.m. Additionally, Dr. Chmell did not address whether
appellant was totally disabled after attending her physical therapy sessions. On December 3,
2008 he indicated that appellant had a flare-up of her work injuries, but did not indicate whether
she was disabled as a result of such flare-up or how the flare-up occurred. On March 9, 2009
Dr. Chmell stated that appellant’s disability beginning April 21, 2008 occurred because she did
not have prescription back seating. However, he failed to provide any medical rationale
explaining how and why inappropriate workplace seating caused appellant to be disabled from
her light-duty job beginning April 21, 2008 due to her accepted injuries. While Dr. Chmell
found appellant totally disabled for work on October 23, 2008 as a result of being exposed to
cold blowing air at work, he did not provide any medical rationale explaining why appellant
became disabled for the claimed hours or days due to her accepted injuries or was unable to
continue work at her light-duty position for the claimed period. His other reports do not indicate
that appellant was totally disabled due to her accepted conditions on specific dates from
April 21, 2008 to January 26, 2009. As noted, the Board will not require the Office to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. Without any reasoned explanation
supporting that appellant was disabled from April 21, 2008 to January 26, 2009, due to her
accepted injuries and beyond that which the Office has already compensated her, the evidence
from Dr. Chmell is insufficient to meet appellant’s burden of proof.15

14

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).
15

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006 (a medical report is of limited probative
value on a given medical question if it is unsupported by medical rationale).

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The record also contains reports and notes from a physical therapist. As a physical
therapist is not included in the definition of a physician under the Act, these reports are of
diminished probative value.16
There is insufficient medical evidence to support that beginning April 21, 2008 appellant
was totally disabled due to her work injuries, beyond the dates accepted by the Office or that she
was totally disabled after her physical therapy sessions. The Office properly denied her claim for
eight hours of disability to attend physical therapy.
CONCLUSION
The Board finds that appellant failed to establish that she was disabled for eight hours a
day while attending physical therapy.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 24, 2009 is affirmed.
Issued: September 23, 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

16

Under section 8101(2), the definition of a physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2). See also Jerre R. Rinehart, 45 ECAB 518 (1994).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
DEPARTMENT OF THE NAVY, SUPERVISOR
OF SHIPBUILDING, Pascagoula, MS, Employer
__________________________________________

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

Docket No. 15-1669
Issued: November 10, 2015

Case Submitted on the Record

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

JURISDICTION
On August 3, 2015 appellant filed a timely appeal from a June 3, 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 recurrence of a
medical condition causally related to his accepted employment injury.
On appeal, appellant contends that the evidence of record, including witness statements,
establish that he was exposed to a hazardous work environment while working at the employing
establishment resulting in his permanent work-related asthma and chronic obstructive pulmonary
disease (COPD). He further contends that the employing establishment has the burden of proof
to establish that his medical conditions are not work related, noting that it had failed to maintain
1

5 U.S.C. § 8101 et seq.

records of his hazardous exposure as required by federal regulations. Appellant submitted new
medical evidence and believes that it establishes that he had healthy lungs prior to his
employment with the Federal Government.
FACTUAL HISTORY
On October 23, 2007 appellant, then a 56-year-old production controller, filed an
occupational disease claim (Form CA-2) alleging that on October 11, 2007 he first realized that
his COPD was caused by years of exposure to fuel, water, sewage, asbestos, insulation, dust, air,
paint waste, smoke, fumes, chemicals, and second-hand smoke while at work in the naval
shipyard. He stated that no respiratory protection was provided to him.
In a note dated October 26, 2007, Dr. Daniel H. Spriggs, a family practitioner, reported
the results of lung capacity testing and diagnosed COPD. He opined that the diagnosed
condition was “most likely” caused by smoking, but other environmental factors may have
contributed to this disease.
In a December 5, 2007 medical report, Dr. Marc S. Gottlieb, a Board-certified internist
with subspecialty certification in pulmonary disease, noted appellant’s history and work
exposure, and provided examination findings. He diagnosed COPD and asthmatic bronchitis.
Dr. Gottlieb opined that “certainly some of this may well be work related.”
In a February 7, 2008 decision, OWCP denied appellant’s claim as the medical evidence
was speculative as to whether his diagnosed medical condition was causally related to his
employment exposure to fumes, dust and other irritants when performing his job duties.
By letter dated March 8, 2008, appellant, through counsel, requested a telephone hearing
before an OWCP hearing representative.
In a June 11, 2008 decision, an OWCP hearing representative set aside the February 7,
2008 decision and remanded the case for referral to a second opinion physician to further
develop whether there was a causal relationship between his diagnosed pulmonary conditions
and the established work exposure.
On June 30, 2008 OWCP referred appellant to Dr. Francisco J. Quinones, a Boardcertified internist with subspecialty certification in pulmonary disease. In his August 27, 2008
report, Dr. Quinones opined that appellant’s asthma was temporarily related to his work
exposure.
By letter dated September 11, 2008, OWCP accepted appellant’s claim for temporary
extrinsic asthma.
On April 29, 2014 appellant filed a claim for a recurrence of medical condition causally
related to his accepted employment injury. He alleged that he had an incurable disease.
By letter dated June 25, 2014, OWCP advised appellant that no evidence had been
received in support of his recurrence claim. It requested factual and medical evidence.

2

In a July 8, 2014 letter, appellant contended that his work-related asthma and COPD were
permanent conditions.
Appellant submitted a May 17, 2010 report from Dr. Robert E. Percy, a Board-certified
internist with a subspecialty in pulmonary disease. Dr. Percy diagnosed occupational asthma or
extrinsic intermittent asthma and COPD. He related that appellant’s conditions were well
controlled with medications and he did not appear to have to use an albuterol rescue inhaler on a
regular basis. After reviewing a description of appellant’s work environment, Dr. Percy cleared
him from a pulmonary standpoint to work in the described environment and believed that
appellant would experience minimal symptoms, if any, from those working conditions.
By decision dated July 29, 2014, OWCP denied appellant’s recurrence claim as he failed
to submit sufficient medical evidence to establish a causal relationship between his current
conditions and his established work exposure to fumes, dust and other irritants.
In an August 11, 2014 letter, appellant, through counsel, again requested a telephone
hearing and submitted statements from his coworkers regarding work duties and work exposure.
In a March 16, 2015 progress note, Dr. Percy noted that appellant had not been seen since
2012. He provided appellant’s history which included a recurrent problem of shortness of
breath. Dr. Percy noted that his current episode started more than one year ago. He reported
examination findings and reiterated his diagnosis of COPD.
In a June 3, 2015 decision, an OWCP hearing representative affirmed the July 29, 2014
decision. He found that appellant had failed to submit any probative medical evidence to
establish a causal relationship between any active pulmonary condition and the accepted work
exposure. The hearing representative noted that no physician had offered an active diagnosis of
the accepted extrinsic asthma condition since 2010 and that appellant had failed to submit
medical evidence of his care from 2010 to present as requested.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.2 Continuous
treatment for the original condition or injury is not considered a recurrence of medical treatment
nor is an examination without treatment.3
An employee who claims a recurrence of medical condition has the burden of proof to
establish causal relationship by the weight of substantial, reliable, and probative evidence. This
burden requires that an employee furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the employee’s need for

2

20 C.F.R. § 10.5(y).

3

Id.

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additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning.4
ANALYSIS
The Board finds that appellant has failed to establish a recurrence of his accepted medical
condition. OWCP accepted that appellant sustained temporary extrinsic asthma while working
as a production controller. On April 29, 2014 appellant filed a recurrence claim alleging that his
current pulmonary conditions were causally related to the accepted condition.
Dr. Percy’s May 17, 2010 report noted his review of a description of appellant’s work
environment and released him to return to work in the same environment, explaining that he
would experience minimal symptoms, if any. He noted that appellant had occupational asthma
or extrinsic intermittent asthma and COPD, but stated that these conditions were well controlled
with medications and it did not appear that appellant had to use an albuterol rescue inhaler on a
regular basis. In a March 16, 2015 progress note, Dr. Percy reiterated his diagnosis of COPD.
The Board notes that the COPD condition has not been accepted as employment related
by OWCP. It was appellant’s burden of proof to establish causal relationship of the COPD
condition.5 Moreover, Dr. Percy did not explain or offer any medical rationale as to how his
accepted temporary extrinsic asthma deteriorated over the years and resulted in the diagnosed
pulmonary condition. The report and progress note are therefore insufficient to establish
appellant’s claim.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a recurrence of a medical condition causally related to the
accepted employment injury. Appellant did not meet his burden of proof.
On appeal, appellant contends that the evidence of record, including witness statements,
establish that he was exposed to a hazardous work environment while working at the employing
establishment which resulted in his permanent work-related asthma and COPD. The Board finds
that the weight of the medical evidence does not establish that appellant’s recurrence of a
medical condition was causally related to his accepted temporary extrinsic asthma.
Appellant further contends on appeal that the employing establishment has the burden of
proof to establish that his disease is not work related, noting that it had failed to maintain records
of his hazardous exposure as required by federal regulations. As stated, he has the burden of
proof to establish a causal relationship between his accepted work exposure and the recurrence of
his medical condition.6

4

E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012).

5

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

6

See cases cited, supra note 4.

4

The Board notes that appellant submitted new evidence with his appeal, but the Board’s
review is limited to the evidence of record before OWCP at the time of its final decision.7
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 failed to meet his burden of proof to establish a
recurrence of a medical condition causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 3, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 10, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

5


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

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-510
Issued: June 10, 2015

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 January 6, 2015 appellant, through counsel, filed a timely appeal from a
November 24, 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 sustained an injury in the performance of duty on
December 21, 2013.
On appeal, counsel asserts that, based on the Board holding in the case E.S.,2 appellant
was in the performance of duty when injured.

1

5 U.S.C. §§ 8101-8193.

2

Docket No. 12-596 (issued April 11, 2013).

FACTUAL HISTORY
On January 2, 2014 appellant, then a 51-year-old psychologist, filed a traumatic injury
claim alleging that, at 5:00 a.m. on Saturday, December 21, 2013, he injured his right knee while
exercising on a treadmill in the fitness center of his hotel, while he was on travel status. He
stopped work on December 30, 2013.
In a January 13, 2014 report, Dr. Sydney G. Smith, a Board-certified orthopedic surgeon,
noted a history that appellant suddenly felt a sharp weakness, swelling, stiffness, and giving way
in his right knee on December 21, 2013 while jogging on a treadmill. He noted January 9, 2014
magnetic resonance imaging (MRI) scan findings of a medial meniscus tear with mild
patellofemoral chondromalacia. Dr. Smith recommended arthroscopic surgery.
By letter dated January 21, 2014, the employing establishment controverted the claim.
Lilia Pascual-Cantu, environmental and safety compliance administrator, stated that appellant
was in travel status from December 17 through 21, 2013. Appellant was attending crisis
negotiation team training at the Bureau of Prisons Management and Specialty Training Center in
Aurora, Colorado. He was authorized to travel on Friday, December 20 or Saturday,
the 21st, 2013. At the time of the claimed injury, appellant was at his hotel exercising on a
treadmill. Ms. Pascual-Cantu maintained that the injury did not occur in the performance of duty
because he was not required to work out as part of his work assignment or duties while attending
training, that personal recreational activity was not reasonably incidental to his work, that the
employing establishment did not expressly or impliedly require participation or encourage
participation through financial support for working out at the hotel gym, and the employing
establishment did not receive any direct benefit beyond the improvement of health and morale.
She attached a training opportunity announcement, a welcome letter to class participants, and
appellant’s training authorization. The letter advised that appellant would be lodged at Country
Inn & Suites in Denver, Colorado.
In letters dated January 27, 2014, OWCP informed appellant of the type of evidence
needed to support his claim and asked the employing establishment to respond.
In an undated statement, appellant noted that he was injured while running on a treadmill
while in travel status. He stated that he was under a physician’s order to get more exercise and
maintained that the activity he was undertaking when injured was reasonably incidental to his
employment and benefitted the employing establishment, that his job called for him to be able to
defend himself against physical assaults from inmates and to assist fellow staff who could be
subjected to physical assaults. Appellant submitted an attending physician’s report, in which
Patrick Katahara, a physician assistant, described a history that he injured his right knee while
running on a treadmill. Mr. Katahara diagnosed right knee medial meniscal injury and ordered
an MRI scan study and orthopedic evaluation.
On February 13, 2014 Ms. Pascual-Cantu additionally advised that the employing
establishment did not expressly or impliedly require, or encourage, appellant’s participation in
physical fitness, nor did it require its employees to utilize gyms for physical fitness.
Ms. Pascual-Cantu explained that the employing establishment did not have a physical fitness
plan and maintained that the employing establishment did not receive direct benefit beyond the

2

improvement of health and morale, noting that the employing establishment did not provide
leadership, equipment, or facilities to appellant for the activity. She noted that he was scheduled
for annual leave from December 23 to 27, 2013.
In a duty status report dated January 13, 2014, Dr. Smith provided work restrictions.
In a February 15, 2014 statement, appellant repeated that he was in travel status and
jogging on a treadmill when he heard his right knee pop several times before giving out. The
immediate effects were severe pain, swelling, and difficulty ambulating. Appellant stated that he
did not have time to seek medical treatment that day as he was scheduled to fly out later that
morning. He was first examined by a physician assistant in Muskegon, Michigan, on
December 22, 2013. Appellant noted severe pain, being unable to drive, being unable to walk
without great difficulty, and that his knee was sore and swollen, with limited range of motion.
He stated that his physician had directed him to regularly exercise, eat a balanced diet, and lose
weight. Appellant had been referred to a weight loss clinic by his endocrinologist. He
maintained that the employing establishment promoted employee physical fitness by having an
on-site wellness coordinator and by providing a workout facility. Appellant stated that his job
description provided that he must be prepared and trained to use physical control in situations
where necessary, such as in fights among inmates, assaults on staff, and riots or escape attempts,
while working within a prison environment. He indicated that essential duties of the position
included restraining, apprehending, and physically controlling inmates in emergency situations,
without hazard to self or others, and that all staff in the correctional facility, regardless of
occupation, was expected to perform law enforcement functions.3 Appellant disagreed with
Ms. Pascual-Cantu’s assertions, maintaining that the above description supported reasons for him
to be physically and mentally fit and that, by participating in the activity when injured, his
employing establishment benefitted by having a more physically fit employee who was better
able to defend himself and fellow employees from a physical assault by an inmate. He attached a
statement from Dan Langlois, who noted that when he met appellant at the airport in Muskegon,
Michigan, on December 21, 2013, appellant could hardly walk and was in extreme pain.
On February 11, 2014 appellant submitted a claim for compensation for the period
February 18 to 20, 2014. The employing establishment paid continuation of pay for the period
December 30, 2013 to February 14, 2014, and that he had not returned to work.
On February 20, 2014 appellant provided information from the employing establishment
website, reflecting it: “shall afford all employees an opportunity to develop, maintain, and
enhance their physical and mental well-being by operating staff fitness centers,” continuing that
it “acknowledges the importance of healthy employees and the role of health and fitness
programs in retaining staff, reducing absenteeism, and increasing employee productivity and
morale.” He attached a list of hotel amenities at the Country Inn & Suites, which included
treadmills and other exercise equipment.

3

A partial position description notes physical demands as: “The work is mostly sedentary, although there is some
walking required in visiting the various units and other areas of the institution. Incumbent must be physically and
mentally able to perform efficiently the essential duties of this position, including restraining, apprehending, and
physically controlling inmates in emergency situations, without hazard to self or others.”

3

By decision dated February 28, 2014, OWCP denied the claim, finding that appellant was
not in the performance of duty when injured on December 21, 2013. It found that he had
deviated from the normal incidents of the trip and engaged in activities which were not
reasonably incidental to his employment or contemplated by his employing establishment.
Appellant timely requested a hearing. He submitted the January 9, 2014 MRI scan report
of the right knee showing a medial meniscus tear and medial compartment chondromalacia. At
the hearing, held on October 14, 2014, appellant testified that he had to maintain a level of
physical fitness for his job, and that the hotel where the December 21, 2013 injury occurred was
selected by the employing establishment. He described the injury and indicated that he had
arthroscopic surgery on March 17, 2014 and returned to full duty on April 15, 2014. Appellant
stated that the training ended on Friday, December 20, 2013, and that on Saturday, December 21,
2013, a permitted travel day, he flew to Michigan. Counsel argued that the E.S., case4
established that he was in the performance of duty when injured.
By decision dated November 28, 2014, an OWCP hearing representative affirmed the
February 28, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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.5
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.6 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.7 “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
said to be engaged in her master’s business, at a place where he or she may reasonably be
expected to be in connection with his or her employment and while he or she was reasonably
fulfilling the duties of his or her employment or engaged in doing something incidental thereto.
This alone, however, is not sufficient to establishment entitlement to compensation. The

4

Supra note 2.

5

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

6

5 U.S.C. § 8102(a).

7

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

4

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.8
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.9
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.10 The second component is whether the employment incident caused a personal injury
and generally can be established only by medical evidence.11
Under FECA, an employee on travel status or a temporary-duty assignment or special
mission for his or her employing establishment is in the performance of duty and, therefore,
under the protection of FECA 24 hours a day with respect to any injury that results from
activities essential or incidental to his or her special duties.12 Examples of such activities are
eating,13 returning to a hotel after eating dinner, and engaging in reasonable activities within a
short distance of the hotel where the employee is staying.14 However, when a claimant
voluntarily deviates from such activities and engages in matters, personal or otherwise, which are
not incidental to the duties of his or her temporary assignment, they cease to be under the
protection of FECA. Any injury occurring during these deviations is not compensable.15
Examples of such deviations are visits to relatives or friends while in official travel status,16
visiting nightclubs and bars,17 skiing at a location 60 miles from where an employee is

8

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

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012
and June 1995).
10

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

11

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).
12

Donald R. Ford, 56 ECAB 577 (2005).

13

Michael J. Koll, Jr., 37 ECAB 340 (1986).

14

Donald R. Ford, supra note 12.

15

C.J., Docket No. 11-413 (issued October 21, 2011).

16

Ethyl L. Evans, 17 ECAB 346 (1966).

17

Conchita A. Elefano, 15 ECAB 373 (1964).

5

undergoing training,18 and taking a boat trip during nonworking hours to view a private
construction site.19
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.20
With regard to recreational or social activities, the Board has held 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 is common to all kinds of recreation and social life.21
ANALYSIS
At 5:00 a.m. on December 21, 2013 appellant injured his right knee while running on a
treadmill at his hotel while he was on travel status attending work-related training in Colorado.
The incident occurred at the time, place, and in the manner alleged. The Board, however, finds
that appellant has not established that he sustained an injury in the performance of duty.
The factual circumstances of this case do not satisfy the criteria set forth above for when
recreational activities full within the course of employment. The incident did not take place on
the premises of the employing establishment during a lunch or recreation period as a regular
incident of employment; the employing establishment did not expressly or impliedly require
participation, and the activity was not part of the service of the employee; and the employing
establishment derived no substantial direct benefit from the activity.22
In this case, appellant’s hotel merely offered an exercise room with a treadmill as an
amenity. While the employing establishment had a gym on its premises in Hawaii, this is not
sufficient to show that his exercise on December 21, 2013 was a job requirement or directed by
the employing establishment. There is no evidence that appellant sustained an injury while
engaged in an activity that was reasonably incidental to the duties contemplated by his

18

Karl Kuykendall, 31 ECAB 163 (1979).

19

Mattie A. Watson, 31 ECAB 183 (1979).

20

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

21

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, supra
note 10; see also Arthur Larson, The Law of Workers’ Compensation § 22.00 (2012).
22

Id.

6

employing establishment.23 His voluntary, personal activity of exercising on the treadmill does
not bring the injury within the course of employment under the criteria establish for recreational
and social activities, no matter that he was in travel status.24
A. Larson, in his treatise, The Law of Workers’ Compensation, sets forth the general
criteria for performance of duty as it relates to traveling employees or employees on temporaryduty assignments as follows:
“Employees whose work entails travel away from the [employing
establishment’s] premises are held in the majority of jurisdictions to be within the
course of their employment continuously during the trip, except when a distinct
departure on a personal errand is shown. Thus, injuries arising out of the
necessity of sleeping in hotels or eating in restaurants away from home are
usually held compensable.”25
The Board has recognized this rule, finding that FECA covers an employee 24 hours a
day when he or she is on travel status or on a temporary-duty assignment or a special mission
and engaged in activities essential or reasonably incidental to such duties.26 However, when the
employee deviates from the normal incidents of his or her trip and engages in activities, personal
or otherwise, which are not reasonably incidental to the duties of the temporary assignment
contemplated by the employing establishment, the employee ceases to be under the protection of
FECA, and any injury occurring during these deviations is not compensable.27 The focus is on
the nature of the activity.28
In Mohsen S. Payombari,29 the employee, who was a Deportation Officer at the
Department of Justice, Immigration and Naturalized Service claimed while in travel status
sustained a right shoulder injury while lifting weights. He argued as in the case at bar, that due
to the potential physical contact and possible restraint of a detained subject he needed to be
physically fit. The employee claimed that this weightlifting was pursuant to an employee
establishment exercise program. The Board found that he was not in the performance of duty
because he deviated from the normal incidents of his travel status by lifting weights in the hotel
gym, thereby placing himself outside the scope of coverage under FECA.30 The Board found
that the employee’s decision to use the weightlifting equipment at the hotel was not incidental to
his employment, but was a personal decision to engage in recreational activity while on travel
23

See Donald R. Ford, supra note 12.

24

See Lawrence J. Kolodzi, supra note 22.

25

A. Larson, The Law of Workers’ Compensation § 15.01 (2009); see Susan A. Filkins, 57 ECAB 630 (2006).

26

Donald R. Ford, supra note 12.

27

Id.

28

See Kenneth B. Briggs, 54 ECAB 411 (2003).

29

53 ECAB 788 (2002).

30

Id.

7

status.31 Further, the Board concluded that weightlifting was not an authorized activity under the
employment exercise program.
Similarly, in this case, appellant was in travel status when he was injured at a hotel gym
while running on a treadmill. Ms. Pascual-Cantu advised that he was not required to work out as
part of his assigned duties while attending training, that the employing establishment did not
expressly or impliedly require his participation or encourage participation in physical fitness or
require its employees to utilize gyms for physical fitness. She further indicated that the
employing establishment did not have a physical fitness plan or provide financial support for
working out, and maintained that the employing establishment did not receive direct benefit
beyond the improvement of health and morale, noting that the employing establishment did not
provide leadership, equipment, or facilities to appellant for the activity.
On appeal, counsel asserts that the E.S., case32 is dispositive. E.S., however, does not
involve recreational activities. Rather, in E.S., the employee was injured while on temporary
duty travelling from his apartment to his work site.33
There is no evidence that appellant sustained an injury while engaged in an activity that
was reasonably incidental to the duties contemplated by his employing establishment.34 He
engaged in a voluntary deviation in going to the gym, which was not pursuant to an activity
directed by his employing establishment and did not arise out of the necessity of his
employment. Appellant, therefore, was not in the performance of duty when he was injured on
December 21, 2013.35
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 an injury in
the performance of duty on December 21, 2013.

31

Id.

32

Supra note 2.

33

Id.

34

See Donald R. Ford, supra note 12.

35

See H.S., 58 ECAB 554 (2007). In light of the Board’s finding, it is not necessary to address the medical
evidence regarding appellant’s right knee injury.

8

ORDER
IT IS HEREBY ORDERED THAT the November 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2015
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hackensack, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1236
Issued: November 15, 2012

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 May 16, 2012 appellant, through her representative, filed a timely appeal from the
January 4, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her emotional condition claim and the April 20, 2012 nonmerit decision of OWCP
denying her reconsideration request. 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 appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 20, 2010 appellant, then a 41-year-old window clerk, filed a traumatic injury
claim alleging that she had stress, chest pain, headaches and nausea from harassment. The
employing establishment controverted the claim contending that she had not proven that
harassment occurred. Appellant submitted medical forms dated August 20 to 25, 2010 with her
claim and a statement in which a witness noted that she saw appellant crying and upset on
August 20, 2010.
By letter dated August 25, 2010, OWCP advised appellant of the additional factual and
medical evidence needed to support her claim.
In a September 7, 2010 statement, appellant related that on August 19, 2010 she had a
problem with a money order and looked for help from her supervisor, Mina Patel. She could not
find Ms. Patel and called the help desk to fix the problem. Ms. Patel then came to appellant’s
window and asked with whom she was talking. She then had a discussion with appellant and the
shop steward on why appellant called the help desk. Appellant stated that she was responsible
for the money order, but that her supervisor failed to fix the problem. She alleged that Ms. Patel
told her and a coworker to stop switching workstations and claimed that this act constituted
harassment. On August 20, 2010 Ms. Patel told appellant to go to a conference room and, when
appellant arrived, she saw her postmaster, Tom Amendola, as well as Jim Spadaccini, a manager,
and Linda Broyles, a coworker. Mr. Amendola told appellant that it was not a disciplinary
meeting and that Ms. Broyles was only observing. Appellant told Mr. Amendola that she wanted
her shop steward present and did not want Ms. Broyles at the meeting as she was not authorized
to represent employees. She became fearful. Appellant alleged that in a loud and nasty voice,
Mr. Amendola told her to get her out of there and clock out. She asked if he was telling her to
leave, to which he replied that he would call the police and escort her out.
Appellant alleged that Mr. Spadaccini then told her that the shop steward would be
coming and noted that she was able to speak to the chief steward. She was not feeling well, but
went back to the meeting and Mr. Amendola stated that someone told him she was talking about
him. Appellant alleged that Mr. Amendola told her that she was not a good worker. She
explained to Mr. Amendola that she had to ask customers questions as a window clerk and
asserted that he responded, “Who are you going to be afraid of, me or the customer?” Appellant
contended that this comment was a threat. She alleged that Mr. Amendola harassed her for six
months and claimed that the August 20, 2010 incident was the culmination of the harassment.
In an August 20, 2010 statement, Ms. Patel stated that on that day Mr. Amendola related
that he overheard appellant in the customer lobby telling Abraham John and Rosa Malspin that
he was threatening and harassing her, that her job revolved around the “Mystery Shopper”
program and that she would not be harassed due to it. Appellant stated that she would not be
pushed around, stating “I am a tough person and will show him.” Mr. Amendola asked that
appellant and another available clerk be brought in as a witness because appellant’s conversation
could be overheard by customers. Ms. Patel stated that Ms. Broyles and appellant came into the
conference room and appellant, in a loud shouting voice, stated that she wanted her shop steward
to be present. Mr. Amendola told appellant that it was not a disciplinary matter and appellant
then abusively stated that he was harassing and threatening her and that she would not attend the

2

meeting without a shop steward. Ms. Patel stated that Mr. Spadaccini instructed appellant to take
a seat and informed her that there was no need for a shop steward as no discipline was involved.
Appellant kept screaming about being harassed and needing a shop steward. Mr. Amendola then
asked her to leave but when she refused to leave, he asked Ms. Patel to call the police. Ms. Patel
noted that appellant asserted that the employing establishment would pay her administrative
leave and Mr. Amendola asked appellant to follow proper procedures. She asserted that
Mr. Amendola acted in a professional manner throughout the conversation.
In a September 18, 2010 statement, Mr. Spadaccini described the August 20, 2010
meeting with Mr. Amendola, Ms. Patel, Ms. Broyles and appellant. Mr. Amendola advised
appellant that he overheard her conversation when she told two other clerks negative comments
about him. He told appellant that he was not going to discipline her but she yelled that she
wanted a shop steward, was being harassed and did not want Ms. Broyles present (at which point
Ms. Broyles left the room). Mr. Amendola kept telling her in a calm manner that the meeting
had nothing to do with discipline, but she kept interrupting and screaming that he was harassing
her. Mr. Spadaccini stated that Mr. Amendola then advised appellant that, if she could not
conduct herself in a professional manner, she would be sent home. Appellant screamed that
Mr. Amendola would have to pay her administrative leave if she left to go home. Mr. Spadaccini
stated that Mr. Amendola told her to clock out and she again screamed that he had to pay her
administrative leave. Ms. Patel followed appellant back to the window to close out and she
stated loudly “who does he think he is.” Mr. Spadaccini advised that she continued to make a
scene and that Ms. Patel called the shop steward, Ophelia Dease. Ms. Patel told appellant that
the shop steward was on the way, and to wait in the swing room; but appellant stated that
Mr. Amendola told her to leave so she was going home. When Ms. Dease arrived,
Mr. Amendola told her what happened and then appellant was called in, but she interrupted him
several times. He left after he was done speaking to appellant and Ms. Patel gave appellant a
P01 (pre-disciplinary interview) for her conduct. Mr. Spadaccini stated that appellant requested
a traumatic injury form, which he gave to her.
In a September 17, 2010 statement, Mr. Amendola related the events of August 20, 2010.
He noted that it took Ms. Dease 20 or 30 minutes to arrive and when she did, he informed
appellant of the conversation he overheard. Mr. Amendola stated that, in front of Ms. Dease and
Mr. Spadaccini, Ms. Patel administered a P01 to appellant for her failure to follow his
instructions. He contended that appellant’s claim for an emotional condition was based on her
reaction to an administrative action. Mr. Amendola stated that his intent was to discuss
appellant’s one-sided conversation in a rational manner and to uncover why she felt harassed
and/or threatened, but that her continuous shouting and disrespectful manner escalated the issue.
He noted that appellant improperly asserted that he stated “Who are you going to be afraid of, me
or the customer?” and stated that he had actually informed her that, if she was afraid of any
customer because she had to perform her job according to the Mystery Shopper guidelines, to
immediately call a supervisor or the local police. Mr. Amendola informed her that it was her
responsibility to perform her job according to the Mystery Shopper guidelines, and that it was his
responsibility to observe the operation.
Ms. Patel provided an additional statement dated November 30, 2010, regarding
appellant’s allegation that she would not fix her money order problem on August 19, 2010. She
stated that the retail unit report showed that appellant had no money order transactions at the

3

time she claimed, at 10:45 a.m., but that she had one on May 26, 2010. On August 19, 2010
appellant left her window to call the help desk and advised that she could have asked permission
to call the help desk. Ms. Patel stated that, while appellant noted that she was responsible for the
money order, she had not been issued a letter of demand for the money order. She stated that all
the window clerks had been instructed not to leave their work areas without notifying a
supervisor. While appellant alleged that she tried to find her, there were seven supervisors she
could have notified. Ms. Patel asked appellant to return to her window because of the customer
wait times. She called appellant into her office with a shop steward to discuss calling the help
desk and leaving her window without permission. Ms. Patel stated that appellant responded that
she was forced to call the help desk, to which Ms. Patel again noted that appellant had ample
time after May 26, 2010 to call the help desk with permission from a supervisor. She noted that
appellant failed to follow instructions regarding switching windows and the Mystery Shopper
program.
By letter dated September 22, 2010, the employing establishment challenged the claim
for the reason that appellant was not harassed by anyone in management at any time as
established by the statements from her supervisors.
By decision dated February 17, 2011, OWCP denied appellant’s emotional condition
claim on the grounds that she did not establish any compensable work factors. It found that she
did not establish harassment or error or abuse in administrative matters.
Appellant disagreed with the decision and requested a telephone hearing before an
OWCP hearing representative. Prior to the hearing, counsel submitted a card referring to the
Weingarten rule regarding union representation, a copy of appellant’s August 20, 2010 letter of
warning and copies of appellant’s Step 2 grievance appeal forms.
At the June 23, 2011 hearing, appellant testified that the Mystery Shopper program
involved trying to sell different products to customers. She testified that many regular customers
became annoyed with the program because they did not want to hear the same questions all the
time. Appellant testified that Mr. Amendola wanted the office to score better under this program
and to reach 100 percent compliance. She asserted that the only way he knew how to do that was
to threaten his employees. Appellant alleged that Mr. Amendola brought her into his office
regarding that matter about 10 times. On August 20, 2010 she was told to meet with
Mr. Amendola and asserted that it was inappropriate for Ms. Broyles to be present and for her to
be asked to such a meeting without union representation. Appellant felt that something serious
was going to happen, and she believed that her Weingarten rights were being violated. She
claimed that it was Mr. Amendola who was loud and abusive. Appellant testified that she
grieved this matter and that it was currently at the Step 2 stage.
In an August 30, 2011 decision, an OWCP hearing representative affirmed the
February 17, 2011 decision finding that appellant did not establish that she sustained a workrelated emotional condition.
Appellant requested reconsideration and counsel submitted a statement which reiterated
that management had harassed appellant and committed error because a union representative
initially was not present on August 20, 2010. She also submitted an undated statement in which

4

Richard Dock, a union shop steward, stated, “I believe that [appellant was] entitled to have a
shop steward present when she’s called into a meeting with the Postmaster and two
supervisor[s], clearly discipline was going to be involved. That’s why Weingarten Rights are so
important.”
In a January 4, 2012 decision, OWCP affirmed the August 30, 2011 decision denying
appellant’s emotional condition claim.
Appellant requested reconsideration and submitted a January 24, 2012 statement in which
Dennis Bowie, executive vice president of North Jersey Area Local of the American Postal
Workers Union, stated, “[Appellant’s] rights were violated by Postmaster Amendola when he
refused and denied to grant [appellant] a shop steward during an interview that [appellant] was
called into on August 20, 2010.”
In an April 20, 2012 decision, OWCP denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
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.2 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.3
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.4 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.5
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.6
2

Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
5

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

6

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

5

To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors.7 However, for harassment to give rise to a compensable
disability under FECA, there must be evidence that harassment did in fact occur. Mere
perceptions of harassment are not compensable under FECA.8
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 employment factors.9 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant 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, OWCP must base its decision on an analysis of
the medical evidence.12 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.13
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents and conditions at work. OWCP denied her emotional condition claim on
the grounds that she did not establish any compensable employment factors. The Board must
initially review whether the alleged incidents and conditions of employment are covered
employment factors under the terms of FECA. The Board notes that appellant’s allegations do
not pertain to her regular or specially assigned duties under Cutler.14 Rather, she has alleged
7

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

8

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

9

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

10

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

11

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

12

Id.

13

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

14

See Cutler note 2.

6

error and abuse in administrative matters and harassment and discrimination on the part of her
supervisors.
Appellant alleged that on August 20, 2010 she was improperly called into a meeting with
Mr. Amendola, the postmaster at her workplace, in order to discuss a conversation he overhead.
She alleged that Mr. Amendola violated her Weingarten rights to have a union shop steward
present at the meeting. Appellant claimed that she was improperly disciplined as a result of this
meeting.
Appellant did not substantiate her allegations of employing establishment error and abuse
in the August 20, 2010 incident. Ms. Patel, Mr. Spadaccini, and Mr. Amendola refuted
appellant’s allegations and provided reasonable explanations for the actions taken. Appellant did
not show that error or abuse occurred on August 20, 2010 when Mr. Amendola performed the
administrative function of speaking to her. While counsel contended that appellant’s Weingarten
rights were violated, there is no independent, corroborative evidence to support his allegations.
The brief conclusory statement of Mr. Dock, appellant’s shop steward, would not constitute such
probative evidence. Moreover, appellant was clearly told when she arrived at the August 20,
2011 meeting that it was not for discipline. It was not until after her behavior during the meeting
that the employing establishment determined discipline was needed, at which point the
discussion ended until her shop steward arrived. While appellant has a Step 2 grievance pending
regarding the August 20, 2010 incident, there is no final decision showing any employing
establishment error or abuse. Moreover, there is no indication that management committed error
or abuse when it disciplined her on August 20, 2010 for her behavior at the meeting. Therefore,
appellant has not established a work factor with respect to these administrative matters.
Appellant indicated that she disagreed with Mr. Amendola about trying to achieve 100
percent in the Mystery Shopper guidelines because she felt that the program annoyed the
customers. However, her mere dislike of employing establishment policies or conditions of her
job would not constitute a compensable work factor.15
Appellant alleged that Mr. Amendola harassed her on August 20, 2010 and other
occasions, but unfounded perceptions of harassment do not constitute an employment factor.
Although the Board has recognized the compensability of verbal abuse in certain circumstances,
this does not imply that every statement uttered in the workplace will give rise to coverage under
FECA.16 Appellant provided no evidence to support her allegations that Mr. Amendola
screamed at her during the August 20, 2010 meeting. Mr. Amendola and the other supervisors
present, Ms. Patel and Mr. Spadaccini, denied this allegation and asserted that appellant was the
one who was loud and unruly. Appellant did not submit probative evidence, such as witness
statements, to show that Mr. Amendola made statements or committed actions on August 20,
2010 or any other occasion which constituted harassment. She alleged that Ms. Patel harassed
her on August 19, 2010 regarding her handling of a money order but she did not submit evidence
supporting this allegation.

15

See supra note 3.

16

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

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On appeal, counsel continued to argue that management harassed appellant and
committed wrongdoing because a union representative initially was not present on
August 20, 2010. However, he did not adequately explain how the evidence of record supported
these arguments.
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,18
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.19 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file her application
for review within one year of the date of that decision.20 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.21 The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record22 and the submission
of evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.23 While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.24

17

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
18

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
19

20 C.F.R. § 10.606(b)(2).

20

Id. at § 10.607(a).

21

Id. at § 10.608(b).

22

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

23

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

24

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

8

ANALYSIS -- ISSUE 2
In her application for reconsideration, appellant, through counsel, continued to argue that
her supervisors harassed her on August 20, 2010 and improperly failed to allow her to have a
union representative present.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law. She did not identify a specific point of law or show that it was erroneously applied or
interpreted. Appellant did not advance a new and relevant legal argument. Her argument that
there should have been a union representative present on August 20, 2010 had been previously
considered and rejected by OWCP. As noted above, the Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case record
does not constitute a basis for reopening a case for merit review.
Appellant also submitted a January 24, 2012 statement in which Mr. Bowie, an executive
vice president at her union, asserted that her rights were violated on August 20, 2010. However,
this statement was similar to the previously submitted statement of Mr. Dock which indicated,
without elaboration, that appellant’s rights had been violated. Therefore, the submission of this
document would not constitute a basis for reopening appellant’s case for merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty. The Board further finds that
OWCP properly denied her request for further review of the merits of her claim pursuant to
5 U.S.C. § 8128(a).

9

ORDER
IT IS HEREBY ORDERED THAT the April 20 and January 4, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 15, 2012
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

10