United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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Appearances:
Stephen Larkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0003
Issued: April 19, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant, through counsel, filed a timely appeal from an August 9,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $13,384.24 for the period of July 8, 2007 through May 8, 2008; and (2) whether
1

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

5 U.S.C. § 8101 et seq.

appellant was at fault in the creation of the $13,384.24 overpayment and, therefore, ineligible for
waiver of recovery of the overpayment.
FACTUAL HISTORY
On April 7, 2003 appellant, then a 58-year-old mail processor, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome as a result of her
repetitive federal employment duties. By decision dated June 5, 2003, OWCP accepted the claim
for bilateral carpal tunnel syndrome. Appellant stopped work and received wage-loss
compensation. OWCP initially paid appellant wage-loss compensation on the supplemental rolls
commencing June 16, 2003, and then paid benefits on the periodic rolls as of October 31, 2004.
In a report dated March 16, 2012, Dr. Daniel R. Ignacio, appellant’s treating physician,
Board-certified in physical medicine and rehabilitation, related that appellant had 49 percent
permanent impairment of the right upper extremity and 35 percent permanent impairment of the
left upper extremity. He explained that, regarding her right upper extremity, appellant had 3
percent diagnosis-based permanent impairment, as well as 14 percent permanent impairment for
sensory deficit, 12 percent impairment for motor deficit, and 20 percent impairment for causalgia.
Regarding her left upper extremity, Dr. Ignacio explained that appellant had 3 percent diagnosisbased permanent impairment, 12 percent permanent impairment for sensory deficit, 10 percent
permanent impairment for motor deficit, and 10 percent permanent impairment for causalgia.
On June 13, 2012 appellant filed a claim for a schedule award (Form CA-7).
In a report dated July 22, 2012, Dr. Lawrence A. Manning, an orthopedic surgeon acting
as OWCP’s district medical adviser (DMA) reported that he did not concur with Dr. Ignacio’s
report. He explained that Dr. Ignacio had provided redundant ratings for diagnosis-based
impairment, as well as sensory and motor deficit impairments.
OWCP prepared a statement of accepted facts (SOAF) on September 14, 2012, which
related that appellant’s claim was accepted for bilateral carpal tunnel syndrome, bilateral wrist
tendinitis, and reflex sympathetic dystrophy (complex regional pain syndrome).
On February 5, 2013 OWCP referred appellant to Dr. Olumuyiwa Paul, a Board-certified
orthopedic surgeon, for an impartial medical evaluation to resolve the conflict in medical opinion
between the DMA and Dr. Ignacio with regard to the degree of appellant’s permanent impairment.
In his February 20, 2013 report, Dr. Paul related that appellant’s wrist sprain was rated
under the diagnosis-based grid for tendinitis. He found that appellant had two percent permanent
impairment of each wrist for tendinitis, which was the highest possible impairment rating for
tendinitis. Dr. Paul also related that appellant’s carpal tunnel syndrome resulted in five percent
permanent impairment of each upper extremity, due to entrapment neuropathy. He concluded that
appellant had seven percent permanent impairment of each upper extremity.
In an August 24, 2015 medical report, Dr. Manning, acting as OWCP’s DMA, concurred
with Dr. Paul’s impairment rating and found that appellant sustained seven percent permanent
impairment of her right upper extremity and seven percent permanent impairment of her left upper
extremity.
2

By decision dated August 27, 2015, OWCP granted appellant a schedule award in the
amount of $26,515.54 for the period July 8, 2007 through May 8, 2008. The decision failed to
note the nature and percentage of permanent impairment. The date of maximum medical
improvement was noted as January 6, 2007 and the award covered a period of 43.68 weeks. The
start date of the schedule award was adjusted to July 8, 2007 because appellant had received wageloss compensation through July 7, 2007. OWCP noted that the award was based on the reports of
Dr. Paul and OWCP’s DMA.
By notice dated April 5, 2017, OWCP made a preliminary determination that an
overpayment of compensation in the amount of $13,384.24 had been created for the period July 8,
2007 through May 8, 2008 because appellant was overpaid for her schedule award. It further found
that she was at fault in the creation of the overpayment because she accepted a payment that she
knew or reasonably should have known that she was not entitled to receive. OWCP explained that
appellant was incorrectly paid $26,515.54 based on 14 percent permanent impairment of her left
upper extremity and 14 percent permanent impairment of her right upper extremity. However,
appellant was only entitled to seven percent permanent impairment of her left upper extremity and
seven percent permanent impairment of her right upper extremity in the amount of $13,131.30,
resulting in an overpayment of $13,384.24. OWCP informed her of her appeal rights and
instructed her to complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documentation within 30 days.
An accompanying July 30, 2015 payroll computer printout indicated that seven percent
permanent impairment of the upper extremity resulted in 21.84 weeks of compensation amounting
to $13,131.30. The comments section noted that the schedule award was based on seven percent
permanent impairment of the right upper extremity. An August 25, 2015 payroll computer printout
noted 14 percent permanent impairment of an upper extremity and 14 percent permanent
impairment of an upper extremity resulted in 43.68 weeks of compensation amounting to a
$26,515.54 schedule award. The comments section indicated that the schedule award was based
on seven percent permanent impairment of the right upper extremity and seven percent permanent
impairment of the left upper extremity.
In a June 5, 2017 overpayment action request, appellant contested the preliminary
overpayment determination and finding of fault and requested a telephone conference. No
evidence was submitted with her request.
By decision dated August 9, 2017, OWCP finalized the preliminary overpayment
determination finding that appellant was overpaid in the amount of $13,384.24 for the period
July 8, 2007 through May 8, 2008 because she was paid $26,515.54 for seven percent permanent
impairment of the left upper extremity and seven percent permanent impairment of the right upper
extremity when she should have only received $13,131.30.3 OWCP also found that appellant was
at fault in the creation of the overpayment and, thus, not entitled to waiver of recovery. Recovery
was directed by repayment of the full amount within 30 days.

3
OWCP’s claims examiner reported that he attempted to reach appellant by telephone and no financial documents
were received in support of her claim.

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LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.5 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A. Guides)6 as the appropriate standard for evaluating schedule
losses.7
Section 8129(a) of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor.8 When OWCP makes a determination that an overpayment of
compensation has occurred because the claimant received an erroneous schedule award, it must
properly resolve the schedule award issue. Before the amount of the overpayment can be
determined, the evidence must establish the degree of permanent impairment.9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision regarding whether appellant
received a $13,384.24 overpayment of compensation for the period of July 8, 2007 through
May 8, 2008.10
In its overpayment determination, OWCP found that an overpayment of compensation
occurred because appellant was incorrectly paid $24,515.54 based on 14 percent permanent
impairment of the left upper extremity and 14 percent permanent impairment of the right upper
extremity. It found that she was only entitled to seven percent permanent impairment for each
upper extremity in the amount of $13,131.30, resulting in an overpayment of $13,384.24.
When OWCP makes a determination that an overpayment of compensation has occurred
because the claimant received an erroneous schedule award, it must first properly calculate the
4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

6

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

7

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

5 U.S.C. § 8129(a).

9

See L.S., Docket No. 08-1247 (issued December 12, 2008); Richard Saldibar, 51 ECAB 585 (2000).

10

See generally R.W., Docket No. 14-0195 (issued October 10, 2014).

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schedule award.11 The Board notes that the August 27, 2015 schedule award decision, which the
overpayment determination relies on, was not properly issued. While the schedule award decision
granted appellant $26,515.54 for the period July 8, 2007 through May 8, 2008, it failed to identify
the percentage and nature of permanent impairment awarded as required under the Federal (FECA)
Procedure Manual.12 The August 27, 2015 decision found that appellant’s schedule award covered
a period of 43.68 weeks at a 66 and 2/3 compensation rate. The August 9, 2017 overpayment
decision found that appellant should have only received an award for seven percent permanent
impairment of the right upper extremity and seven percent permanent impairment of the left upper
extremity. It relied on an August 25, 2015 payroll computer printout, which noted 14 percent
impairment for the arm and 14 percent impairment for the arm, resulting in 43.68 weeks of
compensation in the amount of $26,515.54. The decision also referenced a July 30, 2015 payroll
computer printout as the amount appellant should have been awarded, which indicated seven
percent impairment for the arm and seven percent impairment for the arm resulting in 21.84 weeks
of compensation in the amount of $13,131.30.
The Board notes that, while the August 27, 2015 schedule award decision failed to identify
the percentage and nature of impairment, OWCP’s overpayment decision indicated that appellant
was entitled to seven percent permanent impairment of the left upper extremity and seven percent
permanent impairment of the right upper extremity.13 For complete or 100 percent impairment of
an arm, a claimant is entitled to a maximum of 312 weeks of compensation. With respect to seven
percent impairment of the left upper extremity, appellant would be entitled to seven percent of 312
weeks of compensation, or 21.84 weeks. With respect to seven percent impairment of the right
upper extremity, she would be entitled to seven percent of 312 weeks of compensation, or 21.84
weeks. Taking the 21.84 weeks of compensation for the left upper extremity and adding it to the
21.84 weeks of compensation for the right upper extremity would result in a total 43.68 weeks of
compensation at the 66 and 2/3 percent weekly pay rate. The Board notes that the August 27, 2015
schedule award decision noted that the award covered a period of 43.68 weeks. While the
August 25, 2015 computer payroll printout indicated that appellant received a 14 percent award
for each upper extremity, the $26,515.54 amount awarded was calculated using the correct 43.68
weeks of compensation based on seven percent permanent impairment of each upper extremity.14
The July 30, 2015 computer payroll printout, which indicated that appellant should have only been
awarded $13,131.30, incorrectly calculated the award based on 21.84 weeks of entitlement, which
pertains to seven percent permanent impairment of one upper extremity only.15 As such, the record
before the Board is unclear if an overpayment of compensation occurred. Thus, the Board finds
that the overpayment issue is not in posture for decision as OWCP failed to properly resolve the

11

See W.M., Docket No. 13-0291 (issued June 12, 2013).

12
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.8 (February 2013).
13

M.W., Docket No. 11-0574 (issued October 21, 2011).

14

See 5 U.S.C. § 8107(c)(2); 20 C.F.R. § 10.404.

15

T.K., Docket No. 12-0271 (issued June 21, 2012).

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underlying issue of appellant’s entitlement to a schedule award.16 As the fact of overpayment is
not clearly established by the record, the Board will set aside OWCP’s August 9, 2017 decision
for further development of the evidence.17 Following such further development as it deems
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 19, 2018
Washington, DC

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

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

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

16

M.F., Docket No. 16-1089 (issued December 14, 2016).

17
As the issues of fact of overpayment requires further development, Issue 2 is not in posture for decision. R.L.,
Docket No. 11-1251 (issued January 27, 2012).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Bridgeport, CT, Employer
__________________________________________

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

Docket No. 07-198
Issued: May 18, 2007

Case Submitted on the Record

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

JURISDICTION
On October 30, 2006 appellant filed a timely appeal from an August 9, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his emotional condition
claim. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty causally related to his federal employment.
FACTUAL HISTORY
This case is before the Board for the second time. In a January 23, 2005 decision, the
Board affirmed the denial of appellant’s claim that he sustained an emotional and heart condition

due to factors of his federal employment.1 An Office hearing representative found that appellant
had established as compensable employment factors the fact that he had pesticide exposure in
1987; frequent schedule changes with extraordinarily varied hours prior to 1996; and the general
stressful demands of air traffic control work. The hearing representative found, however, that
appellant failed to submit sufficient medical evidence to establish an emotional condition
resulting from these compensable employment factors. The findings of fact and conclusions of
law adopted in the Board’s prior decision are hereby incorporated by reference.
The record establishes that appellant’s air traffic control duties involved relaying
information, such as providing weather briefings and other monitoring duties to aircraft.
Appellant was not responsible for the live and direct control of aircraft, nor was he responsible
for providing taxing, take-off or landing instructions to pilots. He was medically disqualified
from air traffic control duties in December 2000. Appellant worked modified duties until he
retired on disability in July 2001.
On January 21, 2004 appellant requested reconsideration. In a December 17, 2003
report, Dr. Stephen W. Siebert, a Board-certified psychiatrist, to whom appellant was referred by
his attorney, provided Axis 1 diagnoses of depressive disorder; alcohol abuse, in remission and
psychological factors affecting a physical condition. Dr. Siebert found no history or medical
evidence of any significant medical or psychiatric disorder prior to appellant’s employment as an
air traffic controller. He found that there was evidence from appellant’s history, medical records,
current examination and standardized psychological testing of several psychiatric disorders,
including depression, alcohol abuse and psychological factors affecting a physical condition.
Dr. Siebert advised that the latter diagnosis was applied when individuals have a stress-related
psychological response that influenced the course or exacerbated the symptoms of an underlying
medical condition. Appellant alleged that his rotating shift work resulted in ongoing workrelated stress. Dr. Siebert also noted that appellant, subsequent to his employment as an air
traffic controller, began to drink alcohol excessively, smoke heavily and gain weight. Since that
time, appellant has been diagnosed with multiple chronic medical problems, including
hypertension and arteriosclerotic cardiovascular disease, conditions associated with
occupationally-related stress. Dr. Siebert opined that appellant’s Axis 1 psychiatric disorders
were causally related to his job-related stress and that his psychological condition has
exacerbated or aggravated several of his Axis III medical conditions which included obesity,
hypertension and coronary artery disease. He noted that his opinion was supported by Drs.
Cusano and Rosenberg.
By decision dated April 26, 2004, the Office denied modification of its June 14, 2002
decision.
In a letter dated February 2, 2005, appellant requested reconsideration of the Office’s
April 26, 2004 decision.
In a January 10, 2005 report, Dr. Leonard Goldstein, a licensed clinical psychologist,
diagnosed dysthymic disorder, alcohol abuse in remission, psychological factors affecting a
1

Docket No. 02-2079 (issued January 23, 2003).

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physical condition and avoidant/dependent personality traits. He identified the following factors
as creating significant stress that adversely affected appellant’s health: (1) frequent shift
changes; (2) managerial issues creating conflicting duties and responsibilities; and (3) the general
stressful duties of an air traffic controller. Appellant’s adverse health conditions were noted as
hypertension, diabetes, cardiac condition leading to bypass surgery, obesity, nicotine addition
and alcohol abuse. Dr. Goldstein opined that frequent shift changes and rotating days off made it
difficult to have a predictable schedule and, therefore, planning for normal family and social life
events was problematic. Exacerbating this problem was the disturbance in circadian rhythms and
use of alcohol as a sleep aid in the face of rotating shifts. He opined that ultimately, these
problems contributed to appellant’s divorce in 1980. With respect to the management issues and
policies as being a source of stress, Dr. Goldstein related that appellant was made a temporary
supervisor and was required to write up annual reviews on persons he had only known in a
supervisory capacity for a few months and who had been (and would be again) his colleagues a
short while before. He indicated that appellant was forced to review the wife of his supervisor,
which led to some antagonism between them and was a source of ongoing stress which led
appellant’s eating, drinking and smoking to become further problematic. With respect to the
stressful duties of an air traffic controller, Dr. Goldstein cited to reference materials which
documented the main sources of job stress indicated by air traffic controllers. He advised that it
was evident from the literature that the job of an air traffic controller entailed high psychological
and physical demands and high levels of responsibility while at the same time being subjected to
considerable external control and limited personal flexibility. Dr. Goldstein stated that this was a
formula for high stress.
Dr. Goldstein opined that in light of appellant’s particular psychological dynamics, both
the identified particular job stressors and the general occupational stressors related in the
literature, resulted in a particular pattern of coping which led to an insidious cycle of increasing
stress-related negative health consequences. Based on record review, psychological testing,
medical opinion and literature review, Dr. Goldstein opined that appellant’s identified
employment factors were causally related to his emotional and physical disorders. He explained
that appellant had no prior history of physical or psychological disorder before his work as an air
traffic controller; there was ample evidence establishing the existence of both medical and
psychological disorders which were typical of stress-induced difficulties; and appellant identified
both specific duties and conditions as well as general occupational factors that caused or
contributed to the diagnosed disorders.
By decision dated May 13, 2005, the Office denied modification of its April 26, 2004
decision.
On May 10, 2006 appellant requested reconsideration. In a May 8, 2006 report,
Dr. John R. Lion, a Board-certified psychiatrist, noted his evaluation of May 2, 2006. He
diagnosed dysthymic disorder and identified passive-aggressive personality traits. Dr. Lion
opined that appellant’s dysthymia was causally related to the stress of the work environment “in
general and the above specific incidents in particular.” In his report, Dr. Lion noted that
appellant’s workload, while not involving direct and live control of planes in the air, involved
furnishing pilots with time clearances and void times and relaying control information to
nontowered smaller airports in the New England area. Dr. Lion noted that appellant described

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several incidents which characterized the stressfulness of his work. These incidents occurred
“sometime between 1997 and 1998,” “sometime in the mid 1980’s” and “another occasion”
whereby appellant’s advisory’s were either ignored or discarded by the pilots and had disastrous
results. Appellant additionally noted that when the Bridgeport facility first became operational,
much overtime was required and frequent shift changes occurred. Dr. Lion also noted that,
although he admitted to drinking prior to his employment with the employing establishment, his
work schedule often led to evenings and weekends where appellant was alone and where he
drank excessively.
By decision dated August 9, 2006, the Office denied modification of its prior decision of
May 13, 2005.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
In establishing the causal relationship between the employment and the injury, the Office
usually relies on a physician’s opinion as to whether there is a causal relationship between the

2

5 U.S.C. §§ 8101-8193.

3

Tracy P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Dennis J. Balogh, 52 ECAB 232 (2001).

6

Id.

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claimant’s diagnosed condition and the implicated employment factors.7 This rationalized
medical evidence must be based on a complete factual and medical background of the claimant,8
and must be one of reasonable medical certainty,9 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10 Neither the mere fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.11
ANALYSIS -- ISSUE 1
In its prior decision, the Board affirmed the Office’s decision which found that appellant
had identified compensable work factors with respect to pesticide exposure in 1987; frequent
schedule changes and requirement to work extraordinarily varied hours prior to 1996; and the
general stressful demands of air traffic control work. Following further development, the Office
denied appellant’s claim on the grounds that he did not submit sufficient medical evidence to
establish that he sustained an emotional condition due to these employment factors.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he sustained an emotional condition due to his accepted employment factor(s).
In a December 17, 2003 report, Dr. Siebert opined that appellant’s psychiatric disorders
were causally related to his job-related stress and that his psychological condition has
exacerbated or aggravated several of his medical conditions. However, he did not provide a
rationalized medical opinion based on a proper factual and medical background, explaining his
opinion on causal relationship or otherwise relating his diagnosis to the factors found
compensable in this case. Dr. Siebert noted that appellant had no history or medical evidence of
any significant medical or psychiatric disorder prior to his employment as an air traffic
controller. However, neither the fact that appellant’s condition became apparent during a period
of employment, nor the belief that his condition was caused, precipitated or aggravated by his
employment is sufficient to establish causal relationship. Causal relationship must be established
by rationalized medical opinion evidence.12 This diminishes the value of Dr. Siebert’s opinion.
He additionally found that there was evidence of several psychiatric disorders affecting a
physical condition and explained that this happens when individuals have a stress-related
psychological response that influences the course or exacerbates the symptoms of an underlying
condition. While Dr. Lion noted that appellant felt his rotating shift work resulted in such stress,
7

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

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

12

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

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he failed to identify the reasons why frequent schedule changes and working of varied hours
were responsible for appellant’s condition aside from the fact that such condition(s) manifested
itself after he began working as an air traffic controller. For these reasons, the Board finds the
report of Dr. Siebert insufficient to establish that appellant sustained an emotional condition
causally related to his compensable work factor.
On January 10, 2005 Dr. Goldstein opined that appellant’s work factors caused or
exacerbated his medical problems. He identified appellant’s frequent shift changes and rotating
shifts, the disturbance in circadian rhythms and use of alcohol as a sleep aid in the face of
rotating shifts as a source of stress. While Dr. Goldstein explained that frequent shift changes
and rotating shifts could be a source of stress by causing a disruption in appellant’s circadian
rhythms and how the use of alcohol as a sleep aid could be problematic, he did not explain how
these stressors caused or contributed to appellant’s dysthymic disorder or other diagnosed
conditions. Medical conclusions unsupported by medical rationale are of diminished probative
value and are insufficient to establish causal relation.13 Thus, Dr. Goldstein’s report is of
lessened probative value on this issue. He also related appellant’s dysthymic disorder to
management issues and policies, which were not accepted as established compensable factors in
this case. Dr. Goldstein also attributed appellant’s dysthymic disorder to the general stressful
duties of an air traffic controller by relying on studies conducted of air traffic controllers. The
Board notes that newspaper clippings, medical texts and excerpts from publications are of no
evidentiary value in establishing the causal relationship between a claimed condition and a
claimant’s federal employment as such materials are of general application and are not
determinative of whether the specific condition claimed is related to particular employment
factors or incidents.14 Dr. Goldstein did not sufficiently explain how a specific study applied to
appellant’s particular situation. Moreover, other than the shift schedule and temporary
supervisory duties previously discussed, Dr. Goldstein does not identify the specific factors of
appellant’s job as an air traffic controller which appellant had implicated as a source of his workrelated condition. The record established that appellant’s position did not involve the
responsibility for the live and direct control of aircraft. Thus, Dr. Goldstein’s general reliance on
studies conducted of air traffic controller would not necessarily be applicable to appellant’s
particular situation. Dr. Goldstein’s report is not based on an accurate factual background of
appellant’s job as an air traffic control specialist and does not contain a reasoned explanation as
to how appellant’s dysthymic disorder is causally related to the implicated factors of
employment.15 Thus, Dr. Goldstein’s report is of diminished probative value.
In a May 8, 2006 report, Dr. Lion opined that appellant’s dysthymic disorder was
causally related to the work environment “in general and the above specific incidents in
particular.” He described several incidents which appellant characterized as being part of the
stressfulness of his job, noted that appellant had engaged in frequent overtime and shift changes
and that his drinking became a problem. However, Dr. Lion’s report is deficient in that he did
13

Albert C. Brown, 52 ECAB 152 (2000).

14

See Dennis J. Balogh, 52 ECAB 232 (2001).

15

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

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not explain the reasons why the compensable employment factor(s) caused or contributed to
appellant’s dysthymic disorder. Moreover, Dr. Lion based his report in large part on a history of
employment incidents at work which were not accepted as compensable factors in this case.16
The Board finds that the reports of Drs. Siebert, Goldstein and Lion are insufficient to
meet appellant’s burden to establish that he sustained an emotional condition causally related to
the accepted compensable factors.
CONCLUSION
Appellant has not met his burden of proof in establishing that he developed an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2006 is affirmed.
Issued: May 18, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

See George Tseko, 40 ECAB 948 (1989) (finding that the factual information related by a physician, who
reported only that the claimant was subjected to supervisory harassment without identifying specific events of
harassment and the times and places at which they occurred in sufficient detail, was too vague to support the claim).

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
White Plains, NY, Employer
)
___________________________________________ )
T.S., Appellant

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

Docket No. 11-601
Issued: November 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 10, 2011 appellant filed a timely appeal from the September 27, 2010
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration without further merit review. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this decision. Because more than 180 days elapsed from September 30, 2009, the date of the
most recent OWCP merit decision, to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 25, 2009 appellant filed a claim alleging a recurrence of disability on
February 11, 2009. She experienced right knee pain while walking on the workroom floor.
Appellant indicated that her condition stemmed from a November 27, 2007 work injury under
claim number xxxxxx176.2 OWCP determined that she attributed her condition to additional
work duties on a single day, February 11, 2009, and that it would adjudicate the claim as a new
traumatic injury.
By decision dated April 10, 2009, OWCP denied the claim on the grounds that appellant
did not establish an injury as alleged. It found that the medical evidence did not establish that
the claimed medical condition was related to the established work-related events.
On April 21, 2009 appellant requested a hearing, which was held on August 18, 2009. At
the hearing, her representative argued that the previous claim was accepted for a contusion of the
right knee and right knee sprain and strain. He argued that the claims should be combined to
avoid confusion.
By decision dated September 30, 2009, an OWCP hearing representative affirmed the
April 10, 2009 decision.
In an August 17, 2009 report, Dr. William Colman, a Board-certified orthopedic surgeon,
referenced a 2007 workers’ compensation injury and advised that appellant related injuring her
right knee almost two years prior. He diagnosed chronic regional pain syndrome of the right
knee. In an August 24, 2009 report, Dr. Samant Virk, an orthopedic surgeon, noted treating
appellant in follow-up of chronic regional pain syndrome in the right knee. He noted that she
wanted the condition covered by workers’ compensation.
On November 9, 2009 appellant requested reconsideration.
By decision dated December 17, 2009, OWCP denied appellant’s request for
reconsideration without a review of the merits on the grounds that her request did not raise any
substantial legal questions or include new and relevant evidence and was insufficient to warrant
further merit review.
On July 13, 2010 appellant requested reconsideration. She submitted additional evidence
which included a May 13, 2010 prescription for a cane and a May 13, 2010 work restriction note
from Dr. Virk. Also submitted was a May 13, 2010 partially legible duty status report, Form
CA-17, from Dr. Virk which diagnosed right knee pain and set for work restrictions.
By decision dated September 27, 2010, OWCP denied appellant’s request for
reconsideration without merit review on the grounds that her request neither raised substantial
legal questions nor included new and relevant evidence.

2

The Board notes that claim number xxxxxx176 is not before the Board on the present appeal.

2

LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(2) Advances a relevant legal argument not previously considered by OWCP; or
(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with OWCP’s September 30, 2009 decision, which affirmed the
denial of her claim as the medical evidence was insufficient to establish her claimed right knee
condition as causally related to the February 11, 2009 work incident. The underlying issue on
reconsideration is medical in nature, whether she sustained an injury causally related to her work
on February 11, 2009.
In the July 13, 2010 request for reconsideration, appellant submitted additional evidence
from Dr. Virk which included a May 13, 2010 prescription for a cane and a note that her work
restrictions were unchanged. This evidence is not relevant to the underlying issue because
Dr. Virk did not address whether her right knee condition was caused or aggravated by her work
activity on February 11, 2009. Appellant also provided a partially legible copy of a May 13,
2010 CA-17 form from Dr. Virk; but this report is also not relevant. Dr. Virk again failed to
address whether her work on February 11, 2009 caused or aggravated the right knee condition.
While new to the record, the reports are not relevant because they do not address causal
relationship.
Appellant’s reconsideration request also did not allege that OWCP erroneously applied or
interpreted a specific point of law and she did not advance a relevant legal argument not
previously considered by OWCP. Because she did not meet any of the regulatory criteria to

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

Id.

3

warrant a reopening of the case for further merit review, the Board finds that OWCP properly
declined to reopen the case.
On appeal, appellant noted that OWCP denied her claim based on three items in her
reconsideration request. She explained that she had submitted additional new medical
documentation from her physicians, which was placed in her other claim file instead of the
present claim. Appellant attached those reports and a copy of her certified mail number.
However, the Board has no jurisdiction to review this evidence for the first time on appeal.6
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2011
Washington, DC

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

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

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

6

Id. at § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

4


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

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-1083
Issued: January 28, 2010

Oral Argument September 1, 2009

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

JURISDICTION
On December 16, 2008 appellant filed a timely appeal of the December 16, 2008 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition causally related to
factors of her federal employment.
At oral argument, appellant contended that she sustained an emotional condition as a
result of working in a hostile work environment caused by the behavior of her supervisor.
FACTUAL HISTORY
On June 1, 2008 appellant, then a 56-year-old clerk, filed an occupational disease claim
for depression, stress and anxiety due to a hostile work environment. She alleged that on
April 29, 2008 Tim Salmonsen the postmaster harassed and threatened her. Appellant went to a

local hospital where she was told to take leave from work immediately. She alleged a hostile
work environment for over two years and that she had been retaliated against by the postmaster.
The employing establishment controverted the claim.
In a statement dated May 23, 2007, Lyn Twillie-Darby noted that appellant was obsessed
with the unfair treatment she perceived at the hands of her supervisor. She noted that appellant’s
personal life was affected by how she was treated by her supervisor.
In a May 24, 2007 note, Orphelia Williams stated that when she first met appellant at the
employing establishment her attitude was good. After Mr. Salmonsen became postmaster,
appellant started to complain that he was talking down to her about not being able to do her job
on a daily basis. Ms. Williams noted that appellant’s personality changed and that she always
appeared to be depressed and had been hospitalized twice for chest pains.
On June 26, 2007 Mr. Salmonsen stated that his son called on June 26, 2007, that
appellant did not state she was putting him on hold and that when he went to talk to her about her
telephone manners, she started yelling and cursing at him. In a June 26, 2007 statement,
Jed Deist, a coworker, noted at approximately 11:30 a.m. he heard her tell the postmaster that she
could answer the telephone anyway she wanted and that if he did not like it, she would leave for
the day. Mr. Deist stated that appellant used profanity and had been very disrespectful and
unprofessional.
In a June 27, 2007 note to Junius Johnson, appellant asked to be removed from a “hostile
work environment.” She indicated that Mr. Salmonsen was harassing her about an Equal
Employment Opportunity (EEO) Commission complaint she had in her file. Appellant noted
that on Tuesday, June 26, 2007 Mr. Salmonsen’s son called the office three different times
within 30 minutes and the last time he called Mr. Salmonsen yelled at her, alleging that she did
not tell his son that she was putting him on hold, an allegation appellant denied. She alleged that
Mr. Salmonsen was constantly trying to find fault with her and intimidating her.
In a July 13, 2007 letter of warning, Mr. Salmonsen indicated that on June 26, 2007, after
receiving another remark from a caller he spoke with appellant about her telephone etiquette, at
which point she became very combative and proceeded to holler and curse at him. He noted that
customer complaints had been received in the past indicating that appellant was rude, short and
argumentative with them on the telephone.
In a March 28, 2007 letter to “Denise,” appellant asked for a transfer to another office
until her EEO investigation was concluded.
In an April 21, 2008 note, Mr. Salmonsen indicated that appellant told him that she was
under stress and pain, that he knew she did not curse at him and that she will drop the other EEO
complaint if he took the letter of warning out of her file. He stated that he told her that this
would not happen and that she needed to change; that it was not everybody else.
In an April 29, 2008 report, Mr. Salmonsen indicated that, on that date, he noted that a
tag was left on a tray on the rack. He indicated that when he told appellant that she was
supposed to be checking tags, she told him that someone put it on the tray on purpose. When
Mr. Salmonsen asked her why they would do that she stated that she did not have to listen to this
2

and walked back in the building. He followed appellant there and asked her if she was looking
for a letter of warning. Mr. Salmonsen told her if he found another tag he would give her a letter
of warning because she was supposed to be making sure there were no tags on empty equipment
leaving the building. He noted that about 10 minutes after this exchange, appellant told him that
she was sick and was going home.
In a letter to Mr. Johnson dated April 30, 2008, appellant asked for an intervention into
harassment by Mr. Salmonsen. In this letter appellant made numerous allegations against
Mr. Salmonsen. She alleged that when she has nothing to do at work she asked Mr. Salmonsen
if she could help him with a report or if there was anything else she could do and he would say
that he did not need help. Appellant noted one occasion when she tried to find a report she
needed to work on and was told by him that it was gone, that appellant tried but was unable to
locate the report, that she worked late to do Mr. Salmonsen’s report but that he never said thanks.
She noted that she tried to speak with him about the EEO complaint she filed which she noted
was the beginning of the harassment by him, that she told him she would drop the report if he
would agree to remove a negative letter he put in her file but that he told her that she made her
bed and would now have to lie in it. Appellant noted that he told her that she was in charge of
making sure all tags were off trays and if any were found it was her responsibility even if
someone else left it there.
Appellant noted that she lives in pain from her prior work accident and that on April 20,
2008 she was not given adequate assistance in casing letters and she asked for help because her
leg was hurting. She stated that she recently asked for accommodations to work the window but
“the committee” would not let her work this position because it was beyond her restrictions but
that she told them she would rather work that position than sit five hours a day and do no work
but answer the telephone. Appellant noted that she has been asked to handle customer
complaints and that if the customer does not like her answer to a question, they ask to speak to
her manager.
In support of this letter appellant submitted a document entitled “Retaliation Notes
Ongoing” wherein she listed specific incidents between January 16 and July 14, 2007. These
entries included, inter alia, notations that Mr. Salmonsen stared at her, watched her do her work,
told her that if she did not know where mail went to put it down, that he asked her to perform
certain duties and that he told her someone else would be answering the telephone. Appellant
noted that when she complained her back was hurting that he told her to see a physician. She
noted that, one day when there was nothing to do at work, she started reading and Mr. Salmonsen
asked if she had taken her lunch and when she said no, he sarcastically told her to take it right
now. Appellant noted that he told her not to work at lunch table where she preferred because the
chairs had backs and that he told her to drag a chair to her case even though another worker
worked at the table. She noted that Mr. Salmonsen let Mr. Deist leave early on certain days and
gave him days off home early on Saturday or give him days off. Appellant noted an incident on
January 30, 2007 when he was staring at her while she was working, that she told him that this
was making her uncomfortable, but that he stated that he was going to make sure she was doing
her job. She noted that on February 2, 2007 she asked Mr. Salmonsen a question with regard to a
customer who called complaining and he turned around screamed “what” so she turned away and
handled the situation the best that she could. Appellant noted an incident where she had an apple

3

and drink sitting on a paper towel and he moved it to case and told her she was on break and
another incident wherein he told her to leave break table as she was just ending her lunch.
Appellant also alleged an incident where Mr. Salmonsen turned the radio up to aggravate
her, a time when she was looking for something when he loudly asked what she was looking for,
that he took pictures of things on case floor, that he accused her of stealing coupons out of the
waste and that he was upset because she unplugged the coffee pot and did not replug it. She also
submitted another document entitled “Harassment notes” wherein she listed specific incidents on
certain dates between January 7 and April 29, 2008. In these notes appellant noted an incident
when Mr. Salmonsen asked her why her headlights were on and she said it takes a few moments
for them to got out. On another date she stated that he told her she was too loud when talking to
other employees, that he told her to sit in her case, that there was dispute about where she was to
park, that he told her that if she put mail in wrong box she would be written up. Appellant noted
that on April 14, 2008 she had to work outside her restrictions. She stated that she was told that
if the new employee needed help she would ring the bell and appellant was to get her what she
needed.
In a May 20, 2007 statement, Sarah M. (Sally) Amy noted that she was employed with
the employing establishment since November 1980 until her retirement on March 2, 2007. She
noted that she held a variety of positions including management. Ms. Amy noted that starting
December 6, 1997 she worked in a craft position as distribution window clerk at the Edinboro
office of the employing establishment, the same branch where appellant worked. She noted that
Mr. Salmonsen became Officer in charge at the Edinboro branch in October 2002 and became
postmaster in December 2002. Ms. Amy noted that at that time the entire working environment
changed and became a hostile work environment. She noted various personal incidents that
occurred between Mr. Salmonsen and her. With regard to appellant, Ms. Amy noted that in
February 2004 during a bad spell of weather she came in from work to see appellant seated at the
break table, visibly shaken. She noted that she later learned that appellant had slipped on black
ice getting out of her vehicle that morning and fell hard on her back. Ms. Amy noted that since
appellant had been seriously injured previously, she knew appellant had a real fear of falling and
being hurt. She noted that two days later Mr. Salmonsen was talking to appellant about the fall
in a loud voice and seemed to accuse her of wanting to get hurt. Ms. Amy noted that appellant
tried to defend herself but he simply spoke over her protests and refused to allow her to finish her
statements. Mr. Salmonsen ordered appellant to use certain doors to enter and exit the building
but would not listen to any of her questions about it. Ms. Amy stated that she found the
interaction between appellant and Mr. Salmonsen upsetting. She also noted that the following
Tuesday she was approached by another clerk Gale Brugh, who asked if there was something
that could be done about how Mr. Salmonsen treated appellant. Ms. Amy noted that she reported
this to Denise Marquis, Mr. Salmonsen’s immediate supervisor. She went into detail as to her
alleged personal mistreatment by Mr. Salmonsen and noted that he treated other women at the
Office, including, appellant, in a similarly poor manner. Ms. Amy noted that this mistreatment
included ridiculing appellant for letting the water tap run too long and telling appellant to
transfer all of Ken Austin’s calls to him. She noted a change in appellant’s demeanor since
Mr. Salmonsen was at her branch of the employing establishment.

4

In a May 22, 2007 statement, Louis Gavin, appellant’s son, discussed his mothers
comments regarding her job, her mental state and contended that appellant’s supervisor was out
of line and directly responsible for her negative emotional state of being.
In a February 15, 2008 note, Mr. Salmonsen indicated that he spoke with appellant again
about parking in the back or west of the building. He told her customer parking is getting very
limited and that customers were parking on lawn and double parking and that she would have to
park in the back of the other side of the building, as other employees did. Appellant responded
that she would not park far away and that it would be his fault if she fell.
In another statement dated July 30, 2008, appellant again detailed her recollections with
regard to harassment by Mr. Salmonsen. She noted that when she had her work accident in
2001, he started right away talking about the injury as if it was a joke and that he had dealt with
other employees who pretended to be hurt. Appellant noted that when she received the modified
job offer, Mr. Salmonsen would not let her take it home and review it, but rather told her to sign
it immediately. She noted that when she did not, he became furious. Appellant noted that
Mr. Salmonsen continued to belittle her in front of others, told her that he was going to make it
real hot for her from now on and told her that when she crossed him, he was her worse
nightmare. She noted that he would not give her overtime even though she was on the list,
because he told her that she could not handle the job. Appellant again discussed the incidents
with tags and telephones.
By letter dated August 21, 2008, the employing establishment controverted appellant’s
claim, contending that any stress she suffered was self-generated and not causally related to
employment factors.
In a letter received by the Office on October 20, 2008, Mr. Salmonsen denied that he ever
accused appellant of faking her injury or suggested that she did not get hurt on the job. With
regard to the modified job offer, he stated that appellant had the offer for over five months and
he asked her to finally sign it or not. Mr. Salmonsen did note that he made a mistake in that
appellant was entitled to be converted to a regular position and the modified job was changed to
a regular position, but that no threats or harassment occurred. He noted that when he attempted
to talk with appellant with regard to the manner in which she answered the telephone, she started
hollering and swearing. Mr. Salmonsen noted that other employees complained about her sitting
at the break table all day and so he asked that she take a comfortable chair and sit at the case near
the door so she would be closer and would not need to walk as far. He noted that he did request
of appellant that when the new employee, Martha, rang a bell for her, if she would please find
out what she wants. Mr. Salmonsen stated that he talked with appellant numerous times about
how tags need to be off the empty equipment and that he told all carriers that if they leave any
tags on an empty equipment container anymore, they will receive a letter of warning. He stated
that she hollered at him when he said this. Mr. Salmonsen denied laughing at appellant or
scolding her in the presence of his peers.
In a decision dated December 16, 2008, the Office denied appellant’s claim for
compensation as she had not identified any compensable factors of employment.

5

LEGAL PRECEDENT
To establish that appellant sustained an emotional condition causally related to factors of
her federal employment, she must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition
is causally related to the identified compensable employment factors.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 illness
has some connection with the employment but nevertheless does not come within the coverage
of workers’ compensation. These injuries occur in the course of the employment and have some
kind of causal connection with it but nevertheless are not covered because they are found not to
have arisen out of the employment. However, when disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.2
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 the Act.3 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.4
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.5
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. As a rule, allegations alone by an employee are insufficient to
establish a factual basis for an emotional condition claim but rather must be corroborated by
Unsubstantiated allegations of harassment or discrimination are not
other evidence.6
determinative of whether such harassment or discrimination occurred.7 A claimant must
1

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); Kathleen D. Walker, 42 ECAB 603 (1991).

2

Lillian Cutler, 28 ECAB 125 (1976).

3

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
4

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

5

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

6

See Charles E. McAndrews, 55 ECAB 711 (2004).

7

See Michael Ewanichak, 48 ECAB 364 (1997).

6

establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.8 The issue is whether the claimant has submitted sufficient evidence
under the Act to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.9 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Office and the Board.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, it 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, the Office must base its decision on an analysis of the
medical evidence.12
ANALYSIS
Appellant has the burden of submitting a detailed description of the employment factors
or conditions, which the claimant believed caused or adversely affected her emotional condition.
She has provided detailed descriptions, including dates and times, with regard to actions by her
supervisor, Mr. Salmonsen. However, not every incident that is somehow connected with
appellant’s employment is considered a compensable factor of employment. 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 causally related to factors of her federal employment.
The Board notes that appellant submitted witnesses statements in support of her claim.
However, her children, Ms. Twillie-Darby and Ms. Williams basically repeat things that she told
them and describe her emotional condition. As these witnesses never actually witnessed any of
the allegedly offensive behavior, their statements are not particularly relevant to substantiate
whether appellant sustained a compensable factor of federal employment. The only witness who
actually discussed specific incidents that the witness actually observed occurring at work was
Ms. Amy and the Board will later address her statement.

8

Parley A. Clement, 48 ECAB 302 (1997).

9

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

10

Beverly R. Jones, 55 ECAB 411 (2004).

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Id.

7

Appellant contended that Mr. Salmonsen reprimanded her for her telephone conduct, told
her that she must catch all tags, needed to work on a report that was lost, instructed her to assist a
new employee if she needed help, told her that she could not work at the lunch table, accused her
of stealing coupons out of the waste, ordered her to use certain doors to enter and exit the
building and asked her to sign a modified job-duty offer. Although the handling of disciplinary
actions and the assignment of work duties are generally related to employment, they are
administrative functions of the employer and not duties of the employee. Absent error or abuse,
these matters would not be compensable.13 Generally, complaints about the manner in which a
supervisor performs his or her duties or the manner in which a supervisor exercises his or her
discretion fall outside the scope of coverage provided by the Act. This principle recognizes that
a supervisor manager must be allowed to perform his or her duties and employees will, at times,
dislike the actions taken. Mere disagreement or dislike of supervisory or managerial actions will
not be compensable, absent evidence of error or abuse.14 Appellant’s supervisor acted within his
discretion in performing his supervisory duties of instructing and reprimanding appellant with
regard to her telephone manners and in following up with regard to stolen coupons.
Mr. Salmonsen acted reasonably in instructing her where she could park, especially since he
noted that customers were having a hard time finding parking and that she was instructed to park
with other employees. He acted within his discretion in telling appellant to not work at the break
table but rather in her case. There is no evidence that Mr. Salmonsen acted improperly when he
told her to assist a new clerk if she had any questions nor is there any evidence of abuse in that
he instructed her to remove tags on carts. Furthermore, there is no evidence of abuse in having
appellant work on a report that was lost. A failure of a supervisor to thank appellant for
performing the duties of her job does not establish abuse or error in the performance of the
supervisor’s duties. Furthermore, Mr. Salmonsen was not abusing his duties in monitoring
appellant by observing her work or asking her to perform certain duties. Taking pictures of
appellant’s case also would not be outside of his discretion. Appellant alleged that
Mr. Salmonsen demanded that she sign a modified job offer but he indicated that she had this job
offer for five months.
Appellant was upset that she was not allowed to work a position she desired at the
window. She also noted that she was unhappy just answering telephones and desired a transfer
to another position or another branch. However, disability is not covered when it results from
such factors as an employee’s frustration at not being permitted to work in a particular
environment or to hold a particular position.15
Appellant alleged that another employee was given preferential treatment by the
supervisor, but she does not provide support or explain how this impacted her.
Appellant also asserted that she was harassed by her supervisor. To the extent that
disputes and incidents amounting to harassment arose from the performance of her regular

13

Kim Nguyen, 53 ECAB 127 (2001).

14

T.G., 58 ECAB 189 (2006).

15

See Thomas D. McEuen, supra note 3; Lillian Cutler, supra note 2.

8

duties, these could constitute employment factors.16 However, mere perceptions of harassment
are not compensable.17 Appellant made allegations with regard to incidents that occurred on
specific dates. She alleged that her supervisor stared at her, told her that he did not need help,
insulted her mail handling ability, told her sarcastically to take her lunch break, played the radio
too loudly and that she should have replugged the coffee pot. The Board finds that appellant did
not submit sufficient evidence to establish these allegations as factual. Appellant’s emotional
reaction must be considered self-generated in that it resulted from her perceptions regarding her
supervisor.18
With regard to the statement by Ms. Amy, the Board finds that it is not persuasive with
regard to establishing a hostile work environment. Many of her comments concern her own
issues with Mr. Salmonsen. With regard to Mr. Salmonsen’s alleged mistreatment of appellant,
the most serious allegation made by Ms. Amy is that he accused appellant, in front of other
employees, of trying to hurt herself, an allegation which he denies. The Board notes that there is
no incident report in the record indicating that appellant fell on black ice in February 2004. The
Board finds that Ms. Amy’s statement is not supported by the evidence of record, especially in
light of Mr. Salmonsen’s denial. Ms. Amy indicates that he ridiculed appellant for running the
tap water too long. The Board notes that this incident was never mentioned by appellant.
Ms. Amy indicated that Mr. Salmonsen became angry with appellant for not transferring a call to
Mr. Austin despite the fact that the employees were told that they could not take personal calls at
work. However, this does not establish that Mr. Salmonsen abused his discretion in performing
his duties as a manager. The Board notes that many of the incidents mentioned by Ms. Amy
with regard to appellant are not the same ones appellant mentioned. Ms. Amy’s statement is
insufficient to meet appellant’s burden of proof.
The Board finds that appellant has not established any compensable employment factors
under the Act and, therefore, has not met her burden of proof in establishing that she sustained an
emotional condition in the performance of duty.19
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition causally related to factors of her federal employment.

16

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, supra note 1 at 608.

17

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008).

18

See David S. Lee, 56 ECAB 602 (2005).

19

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).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 16, 2008 is affirmed.
Issued: January 28, 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

10


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

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

Docket No. 09-2036
Issued: June 2, 2010

Case Submitted on the Record

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

JURISDICTION
On August 4, 2009 appellant filed a timely appeal from the February 13, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied her emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On August 7, 2008 appellant, then a 44-year-old customer service supervisor, filed a
claim alleging that she sustained an acute anxiety reaction (stress), depression, chest pain and
asthma attack as a result of her federal employment. She stated that she had various stressful
confrontational situations with her postmaster since April 2008.

Appellant made a number of allegations regarding the postmaster, among them: On
June 24, 2008 the postmaster belittled her in a meeting with the carrier union steward and the
other supervisor. On June 25, 2008 the postmaster called appellant at home to state that she took
down her schedule because it was unintelligible. On June 26, 2008 the postmaster called her and
detailed her to another office without the required seven-day notice. On June 30, 2008 the day
appellant arrived at her new office, the postmaster made the supervisor pull her off the street to
go to a physician for an injury she had nearly seven days earlier. She stated that she already had
a physician. On July 16, 2008 the postmaster detailed her back to Oak Forest, again without a
seven-day notice, to a 4.00 a.m. shift. When appellant arrived at Oak Forest, she found that the
postmaster had revoked her access to certain programs needed to do her job. On July 29, 2008
the postmaster made her work her day off. On July 31, 2008 when appellant inquired about her
time, the postmaster lied about entering her time into the system, so she did not get paid. On
August 1, 2008 the postmaster sent her an e-mail assigning her to a shift starting at 8:15 a.m.
with a two-hour lunch. “This was more than I could take. As the carriers arrived, I was crying
and I could not stop.” Appellant advised that she filed both a grievance and an Equal
Employment Opportunity (EEO) complaint.
The postmaster responded to appellant’s claim: Changes in her work assignments were
planned at the beginning of the fiscal year and were documented. Both supervisors were
required to switch units at midyear to enhance their skills. Appellant’s short assignment was to
provide assistance to Chicago Heights; all postmasters provided assistance when they could.
Notifications were given verbally on occasion because she would leave the office without
stopping by the postmaster’s office. Other time directives required immediate action, which
would constitute a schedule change. The nonscheduled day that was cancelled arose because
appellant failed to complete the required PS 3999 and PS 1838C for the City Routes in the office,
which required all schedules to change to complete the work by the end of August 2008. Her
overtime was put in timely, but when she did not see it in the system, a pay adjustment was
completed on August 12, 2008. Appellant’s time change to 4.00 a.m. was to support a rebidding
process. The postmaster explained that she had a craft mentally as it related to overtime and
expected to be paid overtime for every minute she worked over an eight-hour shift. “Much of
the stress that [appellant] is experiencing is coming from her reaction from not getting her way.
She seems to want to continue to do it the way they do it in the Chicago District, which is her
constant lament.”
In a February 13, 2009 decision, the Office denied appellant’s claim for compensation. It
found that the evidence failed to establish a compensable factor of employment.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for disability or death
of an employee resulting from personal injury sustained while in the performance of duty.1
However, workers’ compensation does not cover each and every injury or illness that is somehow
related to employment.2 An employee’s emotional reaction to an administrative or personnel
1

5 U.S.C. § 8102(a).

2

Lillian Cutler, 28 ECAB 125 (1976).

2

matter is generally not covered. Nonetheless, the Board has held that error or abuse by the
employing establishment in an administrative or personnel matter or evidence that the employing
establishment acted unreasonably in an administrative or personnel matter, may afford coverage.3
Perceptions alone are not sufficient to establish entitlement to compensation. To discharge her
burden of proof, a claimant must establish a factual basis for her claim by supporting her
allegations with probative and reliable evidence.4
ANALYSIS
Appellant attributed her acute anxiety reaction (stress), depression, chest pain and asthma
attack to stressful confrontations with her postmaster. Although the incidents appellant
described relate in some way to her federal employment, any emotional reaction she might have
had to the administrative or personnel actions of her postmaster is not generally regarded as an
injury arising in the performance of duty.
The Board has recognized an exception for administrative error or abuse. Appellant
effectively alleges that the postmaster committed administrative error or abuse when, among
other things, she belittled appellant in a meeting, detailed her to another office without the
required notice, denied her access to certain programs necessary to do her job, did not pay her for
working a nonscheduled day and assigned her to another shift.
Appellant’s allegations of error or abuse in these administrative matters must be
supported by the evidence of record. She submitted no proof to establish that the postmaster
belittled her at a meeting or engaged in any other abusive conduct toward her. Appellant
submitted no documentation to support her allegations of error in any of the described
administrative actions. For example, she alleges that the postmaster may not detail her to
another office without seven days’ notice. However, appellant submitted no documentation of
such rule or proof that it applied to the situation surrounding her detail. She pursued a grievance
and an EEO complaint, but she did not submit evidence of a favorable decision or final finding
by either body to establish that the postmaster engaged in misconduct in her dealings with
appellant. Therefore, appellant’s claim is essentially one of unsubstantiated allegations.
Appellant bears the burden of proof to establish a factual basis for her claim. With no
proof that her postmaster committed administrative error or abuse, she has not met her burden of
proof. The Board will affirm the Office’s February 13, 2009 decision denying her claim for
benefits.
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.

3

Margreate Lublin, 44 ECAB 945 (1993).

4

Ruthie M. Evans, 41 ECAB 416 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2010
Washington, DC

David S. Gerson, Judge
Employees’' Compensation Appeals Board

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

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

4


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

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

Docket No. 11-137
Issued: August 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 5, 2010 appellant filed a timely appeal from a September 24, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for an increased
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant is entitled to an increased schedule award for his
employment-related hearing loss.
FACTUAL HISTORY
On January 22, 2004 appellant, then a 67-year-old mail handler, filed an occupational
disease claim (Form CA-2) for hearing loss caused by noise exposure at work. He did not stop
work.
1

5 U.S.C. § 8101 et seq.

On September 9, 2005 OWCP accepted appellant’s claim for bilateral noise-induced
hearing loss. By decision dated September 28, 2005, it granted him a schedule award for 14
percent bilateral noise-induced hearing loss. The period of the award ran for 28 weeks from
August 15, 2005 to February 26, 2006. OWCP based its impairment determination on the
August 15, 2005 second opinion examination by Dr. Peter Chikes, a Board-certified
otolaryngologist, who found appellant had 14 percent employment-related binaural hearing
impairment. On February 9, 2006 OWCP authorized hearing aids.
On September 15, 2010 appellant filed a claim for an increase of schedule award for
hearing loss and submitted additional supporting evidence. The employing establishment
reported that appellant retired on July 2, 2004.
In an August 19, 2010 report, Audiologist Stephanie G. Nance indicated a sloping mild to
moderately-severe sensorineural hearing loss, bilaterally, worse in the left ear. She provided the
results of audiometric evaluation and recommended replacement hearing aids.2
In an August 24, 2010 note, Dr. Chris E. Newman, a Board-certified otolaryngologist,
cleared appellant for hearing amplification based on a July 17, 2009 evaluation.
On September 22, 2010 the district medical adviser reviewed the medical evidence of
record and determined that the additional decrease in hearing loss was not ratable as appellant
retired from federal employment on July 2, 2004 and, thus, the additional hearing loss was not
causally related to the previous compensable employment factors. OWCP’s medical adviser
provided medical literature to support his rationale, indicating that there are no documented
studies in the literature supporting progressive deafness due to noise and that following removal
from noise exposure the pattern is partial or total impartial impairment.
By decision dated September 24, 2010, OWCP denied appellant’s claim for an increased
schedule award. It found that the weight of the medical evidence did not establish that the
current hearing loss was employment related, noting that appellant had retired on July 2, 2004.
LEGAL PRECEDENT
The Board has long recognized that, if a claimant’s employment-related hearing loss
worsens in the future, he or she may apply for an additional schedule award for any increased
permanent impairment.3 The Board also recognized that a claimant may be entitled to an award
for an increased hearing loss, even after exposure to hazardous noise has ceased, if causal
relationship is supported by the medical evidence of record.4 In this latter instance, the request
for an increased schedule award is not deemed as a new claim.5
2

OWCP authorized new hearing aids on August 26, 2010.

3

See J.R., 59 ECAB 710 (2008); Paul R. Reedy, 45 ECAB 488 (1994).

4

See J.R., supra note 3; Adelbert E. Buzzell, 34 ECAB 96 (1982). See also Federal (FECA) Procedure Manual,
Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7(b) (March 2011).
5

See Paul Fierstein, 51 ECAB 391, 385 (2000).

2

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 evidence which includes a physician’s 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, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
OWCP accepted that appellant sustained bilateral noise-induced hearing loss. In a
decision dated September 28, 2005, it granted him a schedule award for 14 percent bilateral
noise-induced hearing loss. OWCP based the schedule award on the August 15, 2005
impairment evaluation of Dr. Chikes, who provided a second opinion evaluation. The period of
the award ran for 28 weeks from August 15, 2005 to February 26, 2006. On September 15, 2010
appellant filed a claim for an increased schedule award. He did not challenge the amount of the
prior award but instead alleged that he had an increased hearing loss. In support of his request,
appellant submitted an August 19, 2010 report from Audiologist Nance who indicated a sloping
mild-to-moderately-severe sensorineural hearing loss, bilaterally, worse in the left ear. Appellant
also submitted an August 24, 2010 medical report from Dr. Newman who cleared appellant for
hearing amplification.
The Board finds that appellant has not established entitlement to a greater schedule award
for her employment-related hearing loss. Audiologist Nance’s August 19, 2010 report is of no
probative value as she is not a physician under FECA.7 Dr. Newman’s report is of no probative
value as it does not provide a diagnosis nor address the issue of causal relationship.8 OWCP’s
medical adviser reviewed the evidence of record and concluded that appellant did not have an
increased employment-related hearing loss. He explained that appellant had retired on July 2,
2004 and was thus removed from employment-related noise exposure; that the medical literature
does not support progressive deafness; and that once an individual is removed from noise the
hearing either partially or totally improves but does not further decline.
As appellant has not submitted any rationalized medical evidence to show new or
continued noise exposure or the progression of an employment-related hearing loss, appellant
has not established his claim for an increased schedule award.

6

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

7

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).
8

The Board has held that 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. See C.B., Docket No. 09-2027 (issued
May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

3

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant is not entitled to an increased schedule award for his
employment-related hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4