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

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

Docket No. 16-1504
Issued: June 26, 2017

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 July 12, 2016 appellant filed a timely appeal from a June 29, 2016 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 an emotional
condition in the performance of duty.
FACTUAL HISTORY
On March 15, 2016 appellant, then a 60-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that on December 13, 2014 he first became
aware of his major depression, anxiety, stress, and insomnia and first realized that his conditions
1

5 U.S.C. § 8101 et seq.

were caused by mental abuse and stress at work. He noted that a psychologist and psychiatrist
had confirmed causal relationship. Appellant stopped work on December 13, 2014 and has not
returned.
In a December 14, 2014 letter, appellant contended that the stress level at work had
become unbearable for himself and his coworkers. He noted that he had replaced a supervisor
one and one-half years ago who retired prematurely due to stress-related conditions. Appellant
claimed that this could be verified by employees at the employing establishment. He indicated
that he had perfect attendance at work prior to his current absence under the Family Medical
Leave Act (FMLA) due to work stress that had affected his physical and mental health.
In a February 22, 2016 statement, appellant attributed his emotional condition to several
incidents involving Postmaster R.S. R.S. always appeared very angry and upset when he
reported to work which caused appellant to be anxious and have difficulty concentrating on his
duties. R.S. closely scrutinized and monitored appellant’s every move and decision. R.S.
frequently reversed appellant’s decisions regarding employees’ assignments and continually
changed employees’ work schedules that had been prepared by appellant. R.S. reversed an
employees’ scheduled leave requests (which had previously been approved by appellant) to
unscheduled leave. He became infuriated and ordered appellant off the workroom floor when
appellant changed a clerk’s leave slip from unscheduled leave to scheduled leave after the clerk
had previously provided proper supporting documentation. The clerk was continually bullied,
harassed, humiliated, and intimidated by R.S. and filed more than one Equal Employment
Opportunity (EEO) complaints against R.S. regarding his actions.
R.S. physically approached appellant in a threatening manner and stated “do not ever
come against me again, you will never win.” Appellant was unable to help employees under his
supervision. R.S. continually changed qualified sick leave requests to annual leave. Appellant
noted that he witnessed R.S. bully, intimidate, and humiliate employees. R.S. constantly
harassed employees with medical issues. He closely monitored appellant’s telephone
conversations, harassed, berated, and intimidated appellant on a regular basis, and always
hovered over appellant. Appellant contended that R.S. actions were inappropriate and
unjustified as R.S. had acknowledged appellant as an excellent supervisor which was supported
by the performance review and the raise he had received in fiscal year 2014. He reached his total
saturation point on December 13, 2014 when four employees approached him at different times
that day complaining about how R.S. treated them. Appellant became depressed, anxious, and
utterly helpless because he could not fix their situations. Later that evening, he submitted a leave
slip requesting FMLA leave. Appellant also wrote a letter of complaint to the Postmaster
General regarding R.S.
The employing establishment’s January 8, 2015 investigation found that appellant’s
general allegations regarding R.S. had not been substantiated. Appellant noted that only six
employees hand-picked by R.S. had been interviewed in the investigation. He claimed that,
since filing his complaint, employees told him that R.S. had asked them to take pictures of
appellant and his family while they were out in public and to follow his wife on Facebook and
report any information to him. They also told appellant that R.S. stated that appellant would
never be allowed in the employing establishment. Appellant claimed that R.S. was known to be
very vindictive and obsessed with retaliation and revenge. While at home on medical leave,

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since December 14, 2014, appellant received a December 14, 2015 letter which threatened to
remove him from his job due to his inability to perform his work duties and a January 19, 2016
letter of warning for failure to be in regular attendance. R.S. denied appellant’s request for
annual leave beginning December 26, 2015 to January 8, 2016, because appellant was not
protected under the FMLA.
Appellant submitted a witness statement dated February 29, 2016 from D.M., an
employing establishment clerk, who noted incidents that he witnessed of R.S.’s unprofessional
conduct and abuse of authority directed towards employees. He noted that appellant took time
off work to escape the toll that working under R.S. had on his health. Appellant was subjected to
bullying and intimidation and placed in an ethical dilemma by frequently being ordered to do
things that were immoral and violated employing establishment policies. He left work to avoid
an imminent threat of being constantly verbally accosted by R.S. After appellant’s departure,
R.S. ordered employees to not allow him to enter the building. D.M. contended that an
investigation of R.S.’ actions was a charade as neither D.M. or other employees were afforded an
opportunity to speak to investigators about his actions. The employees who were interviewed
had been preselected and the investigators were known acquaintances of R.S.
Employment records were submitted which included a Request for or Notification of
Absence dated December 13, 2014 due to stress. Correspondence between appellant and the
employing establishment addressed, among other things, an investigation of his workplace
concerns, continued absence from work, and medical inability to perform his work duties. The
correspondence included the employing establishment’s January 19, 2016 letter of warning and
request for medical documentation in support of his absence from work as of
December 15, 2014.
Medical reports from Dr. Colleen O. McLemore, an attending Board-certified
psychiatrist, and Dr. Paul J. Cardozo, an attending psychologist, indicated that appellant had
stress, increased anxiety not otherwise specified, insomnia, and recurrent severe major
depressive disorder without psychotic features and that he was totally disabled from work
commencing December 15, 2014.
In a March 22, 2016 letter, R.S. challenged appellant’s claim. He contended that
appellant stopped work on December 13, 2014, but had not filed his FECA claim until
March 15, 2016. R.S. noted the issuance of the January 19, 2016 letter of warning and
appellant’s failure to attend a March 1, 2016 investigative interview concerning his failure to be
in regular attendance. He indicated that appellant’s Form CA-2 indicated that he planned to
return to work, yet two days later on March 17, 2016 he submitted paperwork for his retirement,
which became effective on March 31, 2016. R.S. maintained that appellant had been previously
treated for his alleged emotional conditions. He asserted that there was no medical evidence to
support appellant’s claim for a work-related emotional condition.
By letter dated April 14, 2016, OWCP advised appellant about the deficiences of his
claim and requested that he submit additoinal factual and medical evidence. It also requested
that the employing establishment respond to appellant’s allegations.

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In response to OWCP queries, R.S., in an April 25, 2016 letter, disagreed with appellant’s
allegations. He claimed that there were no aspects of the customer services supervisor job that
were stressful. Appellant received a lateral transfer from an office of 142 employees to an office
with 39 employees. He was responsible for scheduling and daily supervision of 21 carriers and 8
clerks. Appellant’s workday started at 6:00 a.m. and he supervised 3 clerks until 8:30 a.m. when
21 carriers and an additional clerk reported to work. By 10:30 a.m. each day, the 21 carriers
were out of the office delivering their route until their return around 2:30 p.m. By 12:30 p.m.
each day, the three early morning clerks left work and the three afternoon clerks reported. From
about 10:30 a.m. to 2:30 p.m. each day there were normally only four clerks and no carriers in
the office. R.S. noted that he arrived to work by 7:45 a.m. each day and assisted appellant
throughout the day by answering telephones, helping with customer inquiries/concerns, and other
management duties. Appellant took lunch from 10:00 a.m. to 11:00 a.m. daily and left work at
3:00 p.m. (prior to many carriers returning from their routes). R.S. twice allowed appellant to
change his scheduled days off when his wife’s job changed. On December 13, 2014 R.S. called
appellant in the morning and afternoon, but appellant mentioned nothing other than office
operations.
On December 15, 2014 R.S. noticed appellant’s December 13, 2014 note and leave
request. Appellant did not answer his telephone calls or respond to voicemails. R.S. noted that
appellant’s actual job duties did not vary from his official position description. He reported that
he had been a manager since 1986 and postmaster since 1993. R.S. believed that there was
always a professional line between management and employees. He felt that appellant’s
performance suffered because beginning in 2014 he socialized and fraternized outside of work
with his employees. R.S. contended that appellant no longer wanted to hold his employees
accountable for their actions. He spoke to appellant several times about this. In specific
response to allegations, R.S. indicated that he had always reviewed weekly employee schedules
before posting to ensure that all the clerk and route assignments were covered. He maintained
that he would never order a supervisor off a workroom floor, but there were times when he asked
or instructed appellant to come to his office to privately discuss matters about his declining
performance. R.S. and appellant had side-by-side desks on the workroom floor and, while he
had heard some of his telephone conversations, he did not intentionally listen to them. He
indicated that appellant had an office where he could also take his telephone calls.
Regarding the allegation of berating and harassment, R.S. noted that appellant told him,
employees, and other managers on many occasions how he loved working at the employing
establishment and could not thank R.S. enough for letting him work there.
Appellant and his wife attended R.S.’s holiday open house in December 2013. He told
R.S.’s wife and guests how grateful and much better his life was since coming to work there.
R.S. related that he had asked appellant if he was a hard boss and appellant responded that he
was not as hard as his last boss and that working at the employing establishment was a piece of
cake. R.S. contended that, based on his past comments, it did not appear that his supervisory job
was stressful. R.S. related that there were times when the job may have become hectic, due to
unscheduled absences or heavier workloads than expected, but there were only four employees in
the office from 10:30 a.m. to 2:30 p.m. He noted that appellant had a lawn chair in his office
and, in nice weather, he would sit on the back dock and read a book during his lunch hour.
Appellant sometimes moved the chair to a grassy area and leaned back to enjoy the sunshine and

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a catnap. R.S. indicated that the December 14, 2015 letter offered appellant an option to contact
the district reasonable accommodation committee (DRAC) to see if a position could be identified
within his restrictions, but he declined.
Regarding a threat to remove appellant from his employment, he noted that this letter was
mailed to him because he had been on sick leave for one year and the monthly letter he provided
was exactly the same as his previous letters with the exception of the date. R.S. maintained that
appellant’s absence from work for one year with no projected return required weekly overtime to
replace him. In June 2014, he discovered that on December 12, 2014 appellant had asked five
employees for support if he could get R.S. in trouble. R.S. noted that, based on appellant’s letter
to the Postmaster General, he was investigated and random employees were interviewed, but the
investigation found no wrongdoing by R.S.
R.S. submitted a copy of the December 14, 2015 letter in which he addressed appellant’s
medical inabilty to perform his duties. He indicated that appellant’s absence from work had
exceeded the allotted time for FMLA protection and was recorded as unscheduled. In addition to
recommending that appellant schedule a meeting with DRAC, R.S. had also advised appellant
that he could apply for disability retirement, if eligible, or voluntarily resign.
By letter dated December 16, 2015, appellant responded to R.S.’s letter. He indicated
that he had not requested FMLA leave. Rather, appellant was requesting the same sick leave that
had been utilized, approved, and concurrent with his FMLA leave. He disagreed that his absence
from work should be deemed unscheduled as he had provided acceptable medical
documentation, in advance, every 30 days from two of his physician’s who currently treated him.
Appellant related that he would consider the option of scheduling a meeting with DRAC in the
future based on recommendations from his psychiatrist and psychologist. R.S. submitted a job
description for appellant’s supervisory position.
In a May 9, 2016 response to queries from OWCP, appellant reiterated that his severe
anxiety, depression, and resultant disabilty were caused by bullying and intimidation by R.S. He
noted that one of his two EEO complaints was resolved on January 7, 2016 and required R.S. to
process a pay adjustment in light of his wrongdoing. Appellant’s second EEO case was currently
in the formal complaint stage of the process. He indicated that he had previously experienced
work-related stress.
Appellant submitted a witness statement dated April 27, 2016 from C.M., a coworker,
who indicated that she and other female employees had been bullied, yelled at, cursed out, and
made to cry by R.S. C.M. witnessed R.S. bullying appellant. R.S. screamed at appellant for no
reason and belittled and humilitated him in front of employees. He did not allow appellant to
assist his employees or perform his supervisory duties. R.S. held a meeting in which he told
employees to report on appellant’s actions and spy on his wife on Facebook. A January 2015
investigation was conducted regarding his bullying tactics and C.M. and other employees were
told that they would have an opportunity to talk about work conditions. However, only
employees preselected by R.S. were interviewed. When C.M. and employees complained, they
were told the investigation had been completed and nothing was ever done to correct his
behavior.

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In a February 29, 2016 report, Drs. Cardozo and McLemore reiterated their prior
diagnoses and opinion that appellant was totally disabled. The physicians maintained that his
disorder did not develop until he had conflicts with the employing establishment.
By decision dated June 29, 2016, OWCP denied appellant’s claim for an emotional
condition because he had not established any compensable employment factors.
LEGAL PRECEDENT
A claimant has the burden of proof to establish by the weight of the reliable, probative
and substantial evidence that the condition for which he or she claims compensation was caused
or adversely affected by factors of his or her federal employment.2 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.3
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.4 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.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.6 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.7 In determining whether the employing establishment has erred or acted abusively, the

2

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

3

See Donna Faye Cardwell, 41 ECAB 730 (1990).

4

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

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

6

See Matilda R. Wyatt, 52 ECAB 421 (2001); reaff’d on recon., 42 ECAB 556 (1991); Thomas D. McEuen, 41
ECAB 387 (1990).
7

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

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Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.8
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.9 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.10
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish an
emotional condition causally related to factors of his federal employment. The Board notes that
he did not attribute his emotional condition to the performance of his regular or specially
assigned duties as a supervisor of customer services under Lillian Cutler.11 Rather, appellant has
alleged in general and broad terms that his supervisor, R.S., bullied and harassed appellant,
verbally abused him, changed his decisions regarding employee assignments and employee leave
requests, threatened his removal, and denied appellant’s leave request.
As a general rule, a claimant’s reaction to administrative or personnel matters falls
outside the scope of FECA.12 The Board has long held that disputes regarding leave,13 the
assignment of work,14 investigations,15 monitoring work activities,16 disciplinary matters,17 and
assessment of work performance18 are administrative functions of the employing establishment

8

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

9

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

10

Id.

11

Supra note 4.

12

Carolyn S. Philpott, 51 ECAB 175 (1999); see supra notes 6-8.

13

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

14

Robert W. Johns, 51 ECAB 137 (1999).

15

G.S., Docket No. 09-0764 (issued December 18, 2009).

16

V.W., 58 ECAB 428 (2007).

17

C.T., Docket No. 08-2160 (issued May 7, 2009).

18

Elizabeth W. Esnil, 46 ECAB 606 (1995).

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and, absent error or abuse, are not compensable.19 Absent evidence establishing error or abuse, a
claimant’s disagreement or dislike of such a managerial action is not a compensable factor of
employment.20
In this case, appellant has submitted insufficient evidence to substantiate these claims.
He alleged that R.S. made it difficult for him or prevented him from performing his supervisory
duties by closely scrutinizing and monitoring him and changing or reversing his decisions.
However, as noted, the monitoring of work activities is an administrative matter. Mere
disagreement or dislike of a supervisory or of a managerial action will not be compensable,
absent evidence of error or abuse.21 Appellant has not provided sufficient evidence to show that
R.S. erred in monitoring appellant’s work. R.S. explained the reason for his actions, noting that
he had a responsibility to ensure that all clerk and carrier route assignments were covered. The
Board finds that R.S. provided a reasonable explanation for his actions such that appellant has
not established a compensable factor of employment in this regard.
Appellant also has not submitted evidence showing error or abuse with regard to his
allegations that R.S. improperly sought to remove or discipline him and wrongly denied his leave
requests.22 R.S. explained that he sent appellant similar letters every month as appellant had
been on sick leave for a year. The Board notes that R.S. provided a copy of the December 14,
2015 letter noting that appellant’s work absence exceeded the time allowed under the FMLA and
therefore his leave was recorded as unscheduled. The Board advised appellant of options he
could take. The record also contains the employing establishment’s January 19, 2016 letter of
warning which requested medical documentation to support appellant’s absence. Appellant has
not shown how these letters were erroneous or how R.S. otherwise acted unreasonably with
respect to these administrative matters.
Likewise, appellant’s contention, that the employing establishment’s investigation into
his allegations was a charade, has not been factually established. As noted, matters involving
investigations are administrative in nature.23 Appellant’s general allegations, without supporting
evidence do not rise to the level of a compensable employment factor.
With respect to appellant’s allegations of harassment, mere perceptions of harassment or
discrimination are not compensable; a claimant must establish a basis in fact for the claim by
supporting his allegations with probative and reliable evidence.24 Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such action occurred. A claimant
must establish a factual basis for his or her allegations that discrimination occurred with
19

Charles D. Edwards, 55 ECAB 258 (2004).

20

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

21

C.S., 58 ECAB 137 (2006).

22

See supra notes 13, 17.

23

Supra note 15.

24

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

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probative and reliable evidence.25 Appellant has not submitted sufficient evidence to establish
his assertions of harassment or intimidation as factual nor did he provide a sufficient description
of specific incidents. He submitted witness statements dated February 29 and April 26, 2016
from his coworkers, D.M. and C.M. While they stated generally that appellant had been bullied
and intimidated by R.S. and that R.S. ordered employees to not allow appellant back into the
building and to report his actions outside of work and spy on his wife on Facebook, their
statements did not contain any specific details. D.M. and C.M. failed to address specific dates or
what occurred between the parties regarding specific incidents.26 In denying these allegations,
R.S. explained the nature of his job and appellant’s job and asserted that appellant seemed to
enjoy his job and that, when appellant did need to be counseled on declining performance, he
would ask appellant to come to his office to discuss the matter. R.S. acknowledged that he heard
some of appellant’s telephone conversations because their desks were side by side on the
workroom floor, but he denied intentionally listening to them. He denied berating appellant.27
R.S. noted that an employing establishment investigation of his alleged actions failed to establish
any wrongdoing on his part. In these circumstances, appellant’s allegations constitute mere
perceptions or generally stated assertions of dissatisfaction with a superior at work and do not
establish his claim for an emotional disability.28 The Board finds that appellant has not
established a compensable employment factor with regard to his allegations of harassment.
As appellant failed to establish a compensable employment factor, the Board need not
address the medical evidence of record.29
On appeal, appellant contends that the evidence of record establishes his claim. He notes
that he continues to be treated by a psychiatrist and psychologist and takes medications for
depression and anxiety. Based on the findings and reasons stated above, the Board finds that his
argument is not substantiated.
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.

25

G.S., Docket No. 09-0764 (issued December 18, 2009).

26

See supra note 16 (no compensable factor established where a coworker advised that she had witnessed
harassment of appellant by her supervisor on a daily basis where appellant felt intimidated by her supervisor’s
behavior; the coworker’s statement did not describe specific instances of harassment in sufficient detail to establish
a factual basis for the claim).
27

See supra note 17 (while verbal abuse may constitute a compensable factor of employment, not every statement
uttered in the workplace will be covered by FECA; a raised voice in the course of a conversation does not, in and of
itself, warrant a finding of verbal abuse).
28

See Debbie J. Hobbs, 43 ECAB 135 (1991).

29

Katherine A. Berg, 54 ECAB 262 (2002).

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CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish an
emotional condition while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2017
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 20-1493
Issued: March 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On August 6, 2020 appellant filed a timely appeal from a March 11, 2020 merit decision
and an April 7, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition due to factors of her federal employment, as alleged; and (2) whether OWCP properly

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 7, 2020 decision, appellant submitted additional evidence on appeal.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal.

denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On May 18, 2019 appellant, then a 27-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed post-traumatic stress disorder (PTSD) and anxiety
due to factors of her federal employment. She noted that she first became aware of her condition
on September 11, 2018 and first realized its relation to factors of her federal employment on
August 11, 2018. Appellant explained that she had two previous incidents that were investigated
by postal inspectors and that the surrounding area on route 741 looked very similar to the location
of her first incident and triggered her condition. She stopped work on September 11, 2018.
In medical notes dated from October 26 to November 19, 2018, Constance McFarland, a
physician assistant, and Easter Watson, a licensed clinical social worker, found that appellant was
able to return to work and suggested that she not be exposed to a work environment that
exacerbates her symptomatology.
In a November 29, 2018 medical note, Dr. Senora Nelson, Board-certified in family
medicine, recommended that appellant return to work on December 3, 2018 and advised that
appellant not work in an environment that would trigger her symptoms. In a subsequent
December 26, 2018 medical note, she recommended that appellant work indoors.
In duty status reports (Form CA-17) dated from January 9 to May 2, 2019, Dr. Nelson
diagnosed PTSD and provided work restrictions.
In a development letter dated June 7, 2019, OWCP informed appellant that the evidence of
record was insufficient to support her claim. It advised her of the factual and medical evidence
needed and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the necessary evidence. No additional evidence was received.
By decision dated July 8, 2019, OWCP denied appellant’s occupational disease claim,
finding that she failed to provide a detailed description of the employment incidents she alleged to
have caused or aggravated a PTSD or anxiety condition. Therefore, it concluded that the
requirements had not been met to establish an injury as defined by FECA.
OWCP subsequently received additional evidence. In a November 29, 2018 medical
report, Dr. Nelson saw appellant for a follow-up visit relating to her reports of distressing events
at work. She diagnosed depression with anxiety, PTSD and psychosocial stressors and prescribed
medication.
Appellant submitted CA-17 forms dated from February 21 to June 7, 2019 in which
Dr. Nelson again diagnosed PTSD and provided work restrictions.
In a June 7, 2019 medical report, Dr. Nelson noted appellant’s medical history of anxiety,
depression, PTSD, and hyperlipidemia. She diagnosed stress at work, hyperlipidemia, PTSD, and
depression with anxiety.

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In a September 30, 2019 statement, Lauren Burns, a registered nurse, recounted the dates
appellant was evaluated in relation to her diagnosis of PTSD following two employment incidents.
She described symptoms including nightmares, flashbacks, panic attacks, and generalized anxiety
as a result of the employment incidents. Ms. Burns explained that appellant did not have PTSD
prior to the incidents and opined that appellant’s employment aggravated her symptoms on a daily
basis. She found that appellant was unable to work in a postal long-life vehicle (LLV) and
recommended that appellant work in a building at all times.
Appellant, in an October 1, 2019 statement, described a 2016 employment incident where
she was given an unmarked vehicle in order to deliver mail in Gary, IN. She explained that it was
dark outside when she made it to a block and exited her vehicle to deliver the mail. Appellant
recounted that she could barely see the houses because it was so dark when she heard a voice
asking her what she was doing. She stated that she was scared and attempted to explain to a man
standing behind his gate that she worked for the employing establishment. The man had his hand
behind his back and questioned why her vehicle was unmarked. Appellant displayed her postal
hat to show she was a postal worker and the man replied “I was about to shoot you. [Y]ou just do
n[o]t know,” stating that her vehicle looked suspicious. She then took her mail, went back to her
vehicle and called her union president. Appellant then described a second incident in March 2018
where she was put on a different route that had a house that looked familiar to the home where the
2016 employment incident occurred. As a result of the house looking similar to the house where
the initial incident occurred in 2016, she immediately started to panic and replayed the events of
the 2016 incident. Appellant was unable to deliver the mail, returned to the employing
establishment and asked a supervisor if it was the same route where the previous incident occurred.
In a third incident she described being approached multiple times by a man carrying what appeared
to be a dirty white painter’s mask. Appellant attempted to walk in the street to put distance between
them when the man tried to speak to her and entered into her personal space.
On October 4, 2019 appellant requested reconsideration of OWCP’s July 8, 2019
decision.3
In a March 5, 2018 e-mail, A.V., appellant’s supervisor, photocopied a statement where
appellant described an incident where she was out delivering mail and a man made a threat of
sexual assault against her. Appellant asserted that the man attempted to point her to a private area
and proceeded to follow her after she attempted to move away from him. She eventually went to
her LLV and called for assistance.
In a December 5, 2018 medical note, Dr. Nelson explained that appellant was unable to
carry mail because she must be in a safer work environment to avoid triggering a post-traumatic
stress situation.
In a December 20, 2018 offer of modified assignment (limited duty), the employing
establishment offered appellant a modified assignment consisting of administrative duties,
collecting mail, parcel delivery and mail delivery.

3
Appellant also submitted an October 18, 2019 appeal form in which she requested reconsideration of an August 8,
2019 decision. However, the Board notes that the record contains no decision issued on that date.

3

In CA-17 forms dated from June 7 to September 12, 2019, Dr. Nelson diagnosed PTSD
and provided work restrictions.
In medical reports dated from August 29, 2019 to January 6, 2020, appellant complained
to various medical providers of an incident in which she was delivering mail in an unmarked
vehicle and a man threatened to shoot her. She also described the second incident where a man
attempted to sexually assault her. On evaluation, Dr. Pradeep Thapar, a Board-certified general
adult psychiatrist, noted that appellant experienced symptoms when she was reminded of the
incidents and diagnosed PTSD, generalized anxiety disorder and major depressive disorder.
In a January 16, 2020 letter, OWCP requested comments from the employing
establishment with regard to the factual evidence submitted by appellant. It provided the
employing establishment 20 days to respond. No response was received within the allotted time.
By decision dated March 11, 2020, OWCP denied modification of its July 8, 2019 decision.
On March 18, 2020 appellant requested reconsideration. She attached copies of her
October 1, 2019 statement and October 2, 2019 request for reconsideration previously considered
by OWCP.
By decision dated April 7, 2020, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was repetitious and consisted of copies of documentation that
were previously considered.
LEGAL PRECEDENT -- ISSUE 1
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; (2) medical evidence establishing that he or she has an emotional
or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to the emotional condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within coverage
under FECA.6 When an employee experiences emotional stress in carrying out his or her
employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury arising
out of and in the course of employment. This is true when the employee’s disability results from
his or her emotional reaction to a special assignment or other requirement imposed by the
4

George H. Clark, 56 ECAB 162 (2004).

5

28 ECAB 125 (1976).

6

See Robert W. Johns, 51 ECAB 137 (1999).

4

employing establishment or by the nature of the work.7 Allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim.8 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.9 Perceptions and feelings, alone, are not compensable. To
establish entitlement to benefits, a claimant must establish a basis in fact for the claim by
supporting his or her allegations with probative and reliable evidence.10 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.11
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.12 A claimant must establish
a factual basis for his or her allegations with probative and reliable evidence. The issue is whether
the claimant has submitted sufficient evidence under FECA to establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.13 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 OWCP and the
Board.14
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she was harassed at an unspecified time in 2016 as well as sexually
harassed in March 2018. In support of these allegations, she submitted a statement describing the
incidents, a March 5, 2018 e-mail in which A.V., her supervisor, forwarded a photocopied image
of an additional statement, and multiple medical reports where her physicians made note of the
alleged incidents. In her May 18, 2019 Form CA-2, appellant also indicated that the two incidents

7

Supra note 5.

8

J.F., 59 ECAB 331 (2008).

9

M.D., 59 ECAB 211 (2007).

10

Roger Williams, 52 ECAB 468 (2001).

11
See C.M., Docket No. 17-1076 (issued November 14, 2018); Norma L. Blank, 43 ECAB 384, 389-90 (1992).
Unless a claimant establishes a compensable factor of employment, it is unnecessary to address the medical evidence
of record. T.G., Docket No. 19-0071 (issued May 28, 2019); Garry M. Carlo, 47 ECAB 299, 305 (1996).
12

See Michael Ewanichak, 48 ECAB 364 (1997).

13

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

14

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

5

were investigated by postal inspectors. OWCP denied her claim, finding that she did not provide
any evidence to corroborate her personal statement.
The Board notes that on January 16, 2020 OWCP had allotted time for the employing
establishment to respond to appellant’s allegations. However, no response was received.
Nevertheless, OWCP found that appellant had not established any compensable factors of
employment.
OWCP’s procedures provide:
“If an employing [establishment] fails to respond to a request for comments on the
claimant’s allegations, the [claims examiner] may usually accept the claimant’s
statements as factual. However, acceptance of the claimant’s statements as factual
is not automatic in the absence of a reply from the [employing establishment],
especially in instances where performance of duty is questionable. The Board has
consistently held that allegations unsupported by probative evidence are not
established. James E. Norris, 52 ECAB 93 (1999); Michael Ewanichak, 48 ECAB
364 (1997). The [claims examiner] should consider the totality of the evidence and
evaluate any inconsistencies prior to making a determination.”15
Based on appellant’s May 18, 2019 Form CA-2 and the March 5, 2018 e-mail from A.V.,
the Board concludes that the employing establishment conducted an investigation into appellant’s
allegations. The Board finds that it is unable to make an informed decision in this case as the
employing establishment did not respond to the request for comment made by OWCP in the
January 16, 2020 letter.
Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source.16 Since appellant’s allegations indicate that the
employing establishment would have in its possession evidence relevant to her harassment and
sexual harassment allegations, (i.e., findings of the Postal Inspection Service’s investigation)
OWCP should obtain a response from the employing establishment to the allegations of
harassment and sexual harassment and any relevant evidence or argument.17

15
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(d)(1)
(June 2011).
16

See S.L., Docket No. 19-0387 (issued October 1, 2019); K.W., Docket No 15-1535 (issued September 23, 2016)
(remanding the case for further development by OWCP when the employing establishment did not provide an
investigative memorandum in an emotional condition claim based on sexual harassment).
17

Id.; see 20 C.F.R. § 10.117(a), which provides, the employing establishment who has reason to disagree with any
aspect of the claimant’s report shall submit a statement to OWCP that specifically describes the factual allegation or
argument with which it disagrees and provide evidence or argument to support its position. The employing
establishment may include supporting documents such as witness statements, medical reports or records, or any other
relevant information.

6

The case will, accordingly, be remanded to OWCP for further development of the evidence
regarding appellant’s allegations. It shall request that the employing establishment provide a
detailed statement and relevant evidence and/or argument regarding her allegations. Following
this and any necessary further development, OWCP shall issue a de novo decision regarding
whether appellant has established any compensable factors of employment regarding harassment
or sexual harassment and, consequently, sustained an injury in the performance of duty.18
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 7 and March 11, 2020 decisions of the
Office of Workers’ Compensation Programs are reversed and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: March 29, 2021
Washington, DC

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

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

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

18

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CLEVELANDSHAKER HEIGHTS POST OFFICE, Cleveland,
OH, Employer
__________________________________________

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

Docket No. 21-0115
Issued: September 9, 2021

Case Submitted on the Record

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

JURISDICTION
On November 3, 2020 appellant, through counsel, filed a timely appeal from an October 1,
2020 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.

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.

ISSUE
The issue is whether OWCP properly determined that appellant was not entitled to
augmented schedule award compensation based on claiming her minor grandchild, of whom she
had legal custody, as a dependent pursuant to 5 U.S.C. § 8110.
FACTUAL HISTORY
On August 21, 2018 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she suffered a left wrist injury when falling after
being chased by a dog while in the performance of duty. She initially stopped work on
August 21, 2018.
On September 6, 2018 OWCP accepted appellant’s claim for left wrist and hand sprain.
On October 25, 2018 it expanded acceptance of the claim to include left wrist de Quervain’s
tenosynovitis. OWCP paid appellant wage-loss compensation on the supplemental rolls, effective
October 6, 2018.
Appellant underwent
December 11, 2018.

OWCP-authorized

de Quervain’s

left

wrist

release on

On February 14, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a March 2, 2020 report, Dr. Sami Moufawad, a Board-certified specialist in physical
medicine and rehabilitation, reviewed appellant’s history of injury and medical record. He
examined appellant and performed range of motion (ROM) testing, repeating his measurements
three times after warm up. Utilizing the ROM method of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3
Dr. Moufawad noted that appellant’s left wrist demonstrated 45 degrees, 50 degrees, and 50
degrees of extension, which corresponded to three percent permanent impairment of the upper
extremity under Table 15-32, page 473. He indicated that her left wrist demonstrated 45 degrees,
45 degrees, and 50 degrees of flexion, which corresponded to three percent permanent impairment
of the upper extremity. Dr. Moufawad reported that appellant’s left wrist demonstrated 5 degrees,
8 degrees, and 10 degrees of radial deviation, which corresponded to two percent permanent
impairment of the upper extremity. He noted that her left wrist demonstrated 15 degrees, 20
degrees, and 20 degrees of ulnar deviation, which corresponded to two percent permanent
impairment of the upper extremity. Dr. Moufawad calculated that appellant had 10 percent
permanent impairment of the left upper extremity and opined that she had reached maximum
medical improvement (MMI) on March 2, 2020. Utilizing the diagnosis-based impairment (DBI)
method of the A.M.A., Guides, he identified the class of diagnosis (CDX) as a class 1 impairment
for the diagnosis of wrist sprain. Dr. Moufawad assigned a grade modifier for functional history
(GMFH) of 0, in accordance with Table 15-7, page 406. He noted that a grade modifier for
physical examination (GMPE) could not be used as physical examination was used to choose the
CDX. Dr. Moufawad reported a grade modifier for clinical studies (GMCS) of 1, in accordance
3

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

2

with Table 15-9, page 410, based on appellant’s magnetic resonance imaging (MRI) scan findings.
Utilizing the net adjustment formula, he calculated that appellant had a net adjustment of -1,
resulting in movement from the default class of C to B and corresponding to four percent
permanent impairment of the left upper extremity. Dr. Moufawad concluded that the ROM
method should be used in this particular case to determine appellant’s impairment because it
yielded 10 percent permanent impairment of the left upper extremity, which was higher than the
rating from the DBI method.
On April 2, 2020 OWCP referred appellant’s case for a schedule award impairment rating
with Dr. Morley Slutsky, a Board-certified specialist in occupational medicine serving as a district
medical adviser (DMA). In an April 11, 2020 report, Dr. Slutsky reviewed the medical record.
He noted that he was not provided with the diagnostic tests, left wrist surgery note, and medical
notes referenced in Dr. Moufawad’s March 2, 2020 report. Dr. Slutsky concurred with
Dr. Moufawad’s impairment ratings using the ROM and DBI methods of the sixth edition of the
A.M.A., Guides. He therefore found that appellant had 10 percent permanent impairment of the
left upper extremity and opined that she had reached MMI on March 2, 2020.
By decision dated May 4, 2020, OWCP granted appellant a schedule award for 10 percent
permanent impairment of the left upper extremity. The period of the award ran for 31.20 weeks
from March 2 through October 6, 2020. The schedule award compensation rate was 662/3 percent.
On May 12, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a May 3, 2016 court order, which showed that she was granted legal
custody of her granddaughter.
A telephonic hearing was held on August 7, 2020. During the hearing, counsel clarified
that the schedule award determination was not in question. He argued that appellant was entitled
to augmented schedule award compensation as she had legal custody of her granddaughter who
she declared as a dependent. Appellant testified that she had sole legal custody of her
granddaughter and that she lived with her full time.
Appellant submitted her tax returns from 2017 through 2019, in which she listed her
granddaughter as a dependent.
By decision dated October 1, 2020, OWCP’s hearing representative affirmed the May 4,
2020 decision, finding that appellant’s legal custody of her granddaughter did not entitle her to
augmented schedule award compensation.
LEGAL PRECEDENT
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his duty. 4 If the
disability is total, the United States shall pay the employee during the disability monthly monetary
4

5 U.S.C. § 8102(a); see also A.W., Docket No. 19-0832 (issued September 24, 2019).

3

compensation equal to 66 2/3 percent of his or her monthly pay, which is known as basic
compensation for total disability. 5 Under section 8110 of FECA, an employee is entitled to
compensation at the augmented rate of eight and one-third of his or her weekly pay for a total of
75 percent of monthly pay, if he or she has one or more dependents. 6 OWCP’s procedures provide
that the maximum compensation rates for disability compensation also apply to schedule award
compensation.7
A dependent includes an unmarried child who, while living with the employee or receiving
regular contributions from the employee toward his or her support, is either under 18 years of age
or over 18 years of age and incapable of self-support due to physical or mental disability. 8 A child
is also considered a dependent if he or she is an unmarried student under 23 years of age who has
not completed four years of education beyond the high school level and is currently pursuing a
full-time course of study at a qualifying college, university, or training program. 9
ANALYSIS
The Board finds that OWCP properly determined that appellant was not entitled to
augmented schedule award compensation based on claiming her minor grandchild, of whom she
had legal custody, as a dependent pursuant to 5 U.S.C. § 8110.
By decision dated October 1, 2020, OWCP found that appellant was not entitled to
augmented schedule award compensation as there was no provision under FECA for her
granddaughter to be considered as a dependent.
The Board has held that FECA includes stepchildren, adopted children, and posthumous
children, but does not include grandchildren in the definition of dependents for purposes of
augmented compensation.10
Although appellant obtained legal custody of her minor
granddaughter in 2016, there is no evidence of record that she adopted her. A grandchild is not
one of the specifically enumerated dependents for purposes of receiving augmented

5

Id. at § 8105(a).

6

Id. at § 8110.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.7g (February 2013); R.M., Docket No. 19-0463 (issued March 1, 2021); G.J., Docket No. 18-1292 (issued
March 13, 2019).
8

5 U.S.C. § 8110(a).

9
E.B., Docket No. 19-1571 (issued December 31, 2020); R.G., Docket No. 18-1251 (issued November 26, 2019);
E.G., 59 ECAB 599, 603 n.10 (2008).
10

See M.G., Docket No. 09-1511 (issued March 24, 2010); Barbara J. Hill, 50 ECAB 358 (1999); Louis L. Jackson,
39 ECAB 423 (1988) (where the Board noted that, while Congress allowed grandchildren as a class of persons eligible
for death benefits under section 8133, it did not include a grandchild in the definition of dependents for purposes of
augmented compensation under section 8110).

4

compensation.11 Furthermore, guardianship or legal custody by itself does not establish
dependency.12 Accordingly, appellant’s granddaughter is not an eligible dependent under FECA. 13
The Board, therefore, finds that appellant is not eligible for augmented schedule award
compensation based on claiming her granddaughter as a dependent.
CONCLUSION
The Board finds that OWCP properly determined that appellant was not entitled to
augmented schedule award compensation based on claiming her minor grandchild, of whom she
had legal custody, as a dependent pursuant to 5 U.S.C. § 8110.
ORDER
IT IS HEREBY ORDERED THAT the October 1, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

5 U.S.C. § 8101(9). FECA separately defines grandchild for purposes of identifying eligible beneficiaries to
certain death benefits under 5 U.S.C. §§ 8109 and 8133. Id. at § 8101(10).
12

See R.P., Docket No. 14-0771 (issued October 1, 2014).

13

5 U.S.C. § 8101(9).

5


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

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

Docket No. 12-271
Issued: June 21, 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 November 16, 2011 appellant filed a timely appeal from a September 29, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has more than a six percent permanent impairment
to her left arm; and (2) whether OWCP properly determined the period of the July 15, 2011
schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board does not have jurisdiction over a November 17, 2010 overpayment decision. A claimant has 180
days from the date of an OWCP final decision to timely file an appeal and appellant did not file the appeal until
November 16, 2011. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On January 6, 2009 appellant, then a 55-year-old clerk, filed an occupational claim for
left carpal tunnel syndrome as a result of her federal employment. OWCP accepted the claim for
left carpal tunnel syndrome. The record notes that appellant had a previous claim accepted for
right carpal tunnel syndrome.3 She underwent a left carpal tunnel release on September 11, 2009
and returned to work on August 16, 2010.
Appellant received schedule awards for impairment to the right arm of 21 percent on
November 30, 2004 and 18 percent on October 28, 2005, a total of 39 percent. In a report dated
August 30, 2010, Dr. James Rutherford, a Board-certified orthopedic surgeon, selected as a
second opinion physician, provided a history of injury and results on examination. He opined
that appellant had a five percent left arm impairment. In a report dated April 26, 2011,
Dr. Rutherford stated the date of maximum medical improvement (MMI) for the left arm was
March 11, 2010 or six months after the carpal tunnel release.
By report dated June 9, 2011, Dr. Rutherford opined that under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.
Guides) appellant had a six percent left arm impairment based on the carpal tunnel syndrome.
He identified Table 15-23 and found that her default impairment was five percent based on grade
modifier 2. Dr. Rutherford indicated that the functional scale was one grade higher and therefore
appellant had six percent impairment. As to the right arm, he found that she had a 14 percent
permanent impairment.
In a report dated June 20, 2011, an OWCP medical adviser concurred with percentage of
impairment as found by Dr. Rutherford. The medical adviser agreed that the date of MMI was
June 9, 2011, the date of the report by Dr. Rutherford.
By decision dated July 15, 2011, OWCP issued a schedule award for a six percent
permanent impairment to the left arm with a date of MMI as March 11, 2010. The period of the
award was 18.72 weeks commencing September 26, 2010 through February 4, 2011. The
decision found no additional impairment of the right arm.
Appellant requested a review of the written record. By decision dated September 29,
2011, the hearing representative affirmed the July 15, 2011 decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
3

Appellant has an accepted claim filed on November 26, 2002 for right carpal tunnel syndrome and right
shoulder impingement. The January 6, 2009 claim has been doubled with the November 26, 2002 claim for
administrative purposes.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

2

loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.6 The A.M.A. Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.8
The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For the arm, the maximum number of weeks of
compensation is 312.
ANALYSIS -- ISSUE 1
On appeal, appellant specifically stated that “my complaint is not the percentage that I
was given at this time.” She stated that she was trying to get someone to understand that the
claims examiner set the date of MMI as March 11, 2010. According to appellant, she had
returned to work on August 16, 2010 and was paying back an overpayment of compensation.
She felt that her schedule award had been delayed and she was entitled to an award from
August 16, 2010 to February 4, 2011.
The determination that appellant had a six percent left arm impairment was based on
Dr. Rutherford’s June 9, 2011 report.9 He identified Table 15-23, which provides impairments
for entrapment/compression neuropathies.10 Dr. Rutherford found a grade modifier of 2, for a
history of significant intermittent symptoms, decreased sensation on examination and test
findings of motor conduction block. The default arm impairment is five percent. The default
value may be adjusted based on a functional scale, using a QuickDASH questionnaire.11
Dr. Rutherford found that the functional scale was a grade modifier 3 or severe rating, which
results in an adjustment of +1 from the default value. The medical adviser concurred in this
application of Table 15-23.

6

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

7

See supra note 5.

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A right arm impairment is a separate issue arising from a previous injury and should have been addressed in a
separate decision. Since this is a merit review of the September 29, 2011 decision, appellant has one year from the
date of this Board decision to request reconsideration. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (October 2011). In addition, a claimant may at any time seek an additional
schedule award and submit probative medical evidence showing an increase in an employment-related permanent
impairment.
10

The A.M.A., Guides 449, Table 15-23.

11

As noted by the A.M.A., Guides, the QuickDASH is a shortened version of the standard disabilities of the arm,
shoulder and hand questionnaire. A.M.A., Guides 482.

3

The weight of the medical evidence of record establishes six percent permanent
impairment to appellant’s left arm. The maximum number of weeks for arm impairment is 312
weeks. Therefore, appellant is entitled to six percent of 312 weeks or 18.72 weeks of
compensation. The Board finds OWCP properly found that appellant was entitled to 18.72
weeks of compensation.
LEGAL PRECEDENT -- ISSUE 2
It is well established that the period covered by a schedule award commences on the date
that the employee reaches MMI from residuals of the employment injury.12 This is a medical issue
and is determined by the medical evidence.13 With respect to the period of a schedule award, an
employee cannot concurrently receive compensation under a schedule award and compensation
for disability for work.14
ANALYSIS -- ISSUE 2
As noted, appellant’s entitlement to compensation for the six percent left arm permanent
impairment is 18.72 weeks. With respect to the specific period for payment of the 18.72 weeks of
compensation, this is based on the date of MMI.
Dr. Rutherford indicated that the date of MMI was March 11, 2010, approximately six
months after the carpal tunnel release surgery.15 The Board finds that the evidence supports a
finding that MMI occurred on March 11, 2010. OWCP did not begin the schedule award on
March 11, 2010 because appellant was still receiving compensation for wage loss at that time.
While appellant refers to a “delay” in the schedule award, this was not adverse to her because if
the schedule award had begun on March 11, 2010 she would not have been entitled to wage-loss
compensation at the same time.16
On appeal, appellant contends that her schedule award should have begun on August 16,
2010 when she returned to work, instead of September 26, 2010. She would be entitled to 18.72
weeks of compensation, regardless of whether the schedule award began on August 16 or
September 26, 2010.
The Board finds that OWCP properly determined the period of the award for 18.72 weeks
from September 26, 2010 to February 4, 2011. Based on the evidence of record, the period of
the award does not represent an adverse finding to appellant. She may request an increased

12

Albert Valverde, 36 ECAB 233, 237 (1984).

13

Adela Hernandez-Piris, 35 ECAB 839 (1984); James T. Rogers, 33 ECAB 347 (1981).

14

James A. Earle, 51 ECAB 567 (2000); Andrew B. Poe, 27 ECAB 510 (1976).

15

The medical adviser did not provide any explanation as to why the date of MMI provided by Dr. Rutherford
was inappropriate.
16

See Marie J. Born, 27 ECAB 623 (1976).

4

schedule award based on evidence of new exposure or medical evidence showing progression of
an employment-related condition resulting in greater permanent impairment.
CONCLUSION
The Board finds that appellant does not have more than a six percent employment-related
permanent impairment to her left arm. In addition, the Board finds that OWCP properly
determined the period of the award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2011 is affirmed.
Issued: June 21, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlestown, WV, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-564
Issued: February 4, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 18, 2007 appellant filed a timely appeal of a November 21, 2007 Office of
Workers’ Compensation Programs’ hearing representative’s schedule award decision.1 Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule
award claim.
ISSUE
The issue is whether appellant has established more than 22 percent right upper extremity
impairment and more than 20 percent left upper extremity impairment, for which he received a
schedule award.

1

The record contains an Office decision dated November 29, 2007 concerning appellant’s wage-earning capacity.
Appellant has not contested this decision on appeal; therefore, the Board will not review this decision. 20 C.F.R.
§ 501.2(c).

FACTUAL HISTORY
On December 23, 1995 appellant, then a 34-year-old modified mail handler, filed an
occupational disease claim for a bilateral upper extremity condition he attributed to his
employment. The Office accepted the claim for bilateral carpal tunnel syndrome and bilateral
epicondylitis and paid appropriate benefits. Appellant underwent bilateral ulnar nerve
transposition and bilateral carpal tunnel surgeries, which the Office authorized. He eventually
returned to work in a limited-duty capacity.
On July 30, 2001 the Office paid a schedule award for 14 percent permanent impairment
of the right upper extremity and 14 percent permanent impairment of the left upper extremity.2
The award covered the period July 9, 2001 through March 12, 2003, which appellant elected to
receive in a lump sum.
On April 5, 2005 appellant filed a claim for an increased schedule award. In a March 14,
2005 report, Dr. Christopher Brigham, Board-certified in occupational medicine, opined that
appellant had 18 percent permanent impairment of the right arm and 16 percent permanent
impairment of the left arm under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides). His findings were based on range of motion
impairments of the elbow and sensory and motor deficits of the ulnar nerve. For range of motion
impairments of the elbow, Dr. Brigham found 129 degrees flexion resulted in one percent upper
extremity impairment and 19 degrees extension resulted in two percent impairment. He also
found flexion of 130 degrees equaled one percent upper extremity impairment and 5 degrees’
extension equaled one percent upper extremity impairment. Under Table 16-15 of the A.M.A.,
Guides, Dr. Brigham noted the maximum loss for the ulnar nerve above midforearm was 7
percent upper extremity impairment for sensory deficits and 46 percent upper extremity
impairment for motor deficits. Under Tables 16-10 and 16-11, he opined that appellant had a
Grade 3 or 60 percent sensory deficit of the ulnar nerve and a Grade 4 or 25 percent motor deficit
of the ulnar nerve. Dr. Brigham found appellant had 4 percent ulnar nerve sensory deficit (60
percent times 7 percent) and 11 percent ulnar nerve motor deficit (25 percent times 46 percent)
for 15 percent upper extremity impairment on both sides. He combined the range of motion and
neurological impairments to arrive at 18 percent right arm impairment and 16 percent left arm
impairment. On March 31, 2005 Dr. Brigham noted that this impairment included previously
awarded and current impairments for the elbow.
On May 17, 2005 an Office medical adviser reviewed Dr. Brigham’s report and advised
range of motion calculations could not be used in contribution with neurologic award. Thus, he
opined that appellant had less impairment than that awarded.3

2

This was based on an Office medical adviser’s report of July 23, 2001. The medical adviser utilized the
examination findings of a prior physician and found that appellant had 7 percent median nerve motor and sensory
impairment and ulnar nerve motor and sensory impairment of 8 percent, for a combined impairment of 14 percent
for each upper extremity.
3

The Office medical adviser opined that appellant had 12 percent impairment to his right upper extremity and 12
percent impairment to his left upper extremity.

2

By decision dated August 1, 2005, the Office denied appellant’s claim for an additional
schedule award as it was less than what had previously been awarded.
In a November 29, 2005 medical report, the Office medical adviser rereviewed
Dr. Brigham’s March 14 and 31, 2005 reports along with the medical evidence of record and
opined that appellant had 14 percent permanent impairment of the right upper extremity and 15
percent permanent impairment of the left upper extremity. The Office medical adviser indicated
that he concurred with the findings and impairment rating calculated by Dr. Brigham, but he “did
not believe there [wa]s any clinical evidence on examination of the patient to justify any motor
deficit [of the ulnar nerve] and therefore there [wa]s no justification for a schedule award for any
motor deficit [of the ulnar nerve].”
By decision dated March 13, 2006, the Office awarded an additional one percent
permanent impairment of the right upper extremity. This equated to a total schedule award of 15
percent right upper extremity and 14 percent left upper extremity. The award covered the period
July 11 through August 1, 2004.
Appellant disagreed with this decision and requested a review of the written record. By
decision dated June 12, 2006, an Office hearing representative affirmed the Office’s March 13,
2006 decision.
Appellant requested reconsideration. In an August 25, 2006 report, Dr. Brigham
reiterated his opinion that appellant had 18 percent right arm impairment and a 16 percent left
arm impairment. He disagreed with the Office medical adviser’s assessment that there was no
impairment for an ulnar nerve motor deficit as there was ample evidence to support strength loss
as it related to the ulnar nerve injury and subsequent surgery performed. Dr. Brigham stated the
recorded physical examination findings documented intrinsic hand weakness and thumb
opposition weakness.4 He noted intrinsic hand weakness was associated with ulnar nerve lesion
pursuant to the A.M.A., Guides. Dr. Brigham also noted that, under Table 15-11, strength loss
for the ulnar nerve was conservatively recorded as a Grade 4 or 25 percent motor deficit. He
reiterated his impairment rating of 18 percent right arm and 16 percent left arm rating were based
on the combined value of the sensory and motor loss of the ulnar nerve and range of motion
losses.
The Office referred appellant’s medical records to a different Office medical adviser,
Dr. Morley Slutsky, for review. In a November 9, 2006 report, Dr. Slutsky found Dr. Brigham’s
supplemental report and medical information in appellant’s chart sufficient to support
Dr. Brigham’s opinion that appellant had 16 percent impairment to the left arm and 18 percent
impairment to the right arm. He advised that both the former Office medical adviser and
Dr. Brigham had the same right and left upper extremity ratings for ulnar nerve sensory deficits
and loss of elbow range of motion. Dr. Slutsky further found that the record contained clinical
evidence dating back to 2001 for ulnar nerve strength deficits and objective testing which
showed ulnar nerve irritation. He opined that Dr. Brigham properly calculated appellant’s
impairment for range of motion and sensory and motor deficits of the ulnar nerve. Dr. Slutsky
4

Dr. Brigham advised the thumb opposition weakness is normally related to median nerve involvement and was
not considered in the impairment assessment of the ulnar nerve injury.

3

further opined that the final upper extremity impairment was equal to the combination of
impairments due to bilateral/lateral epicondylitis and carpal tunnel syndrome. Using the
Combined Values Chart on page 604 of the A.M.A., Guides, he found that right arm impairment
was 22 percent and left arm impairment was 20 percent. The right upper extremity impairment
consisted of 5 percent impairment for right carpal tunnel and 18 percent impairment for right
lateral epicondylitis. The left upper extremity impairment consisted of 5 percent impairment for
left carpal tunnel syndrome and 16 percent impairment for left lateral epicondylitis.
By decision dated November 20, 2006, the Office vacated the March 13, 2006 decision.
Appellant’s case was accepted for 18 percent permanent impairment to the right arm and 16
percent permanent impairment to the left arm.
By decision dated November 21, 2006, the Office awarded an additional 3 percent
impairment for the right upper extremity, for a total of 18 percent, and an additional 2 percent
impairment for the left upper extremity, for a total of 16 percent. The award covered the period
August 2 to November 19, 2004.
Appellant requested a review of the written record. He argued that Dr. Brigham’s rating
excluded consideration of impairment for the accepted bilateral carpal tunnel conditions. On
March 27, 2007 an Office hearing representative reversed the Office’s November 21, 2006
decision. The Office hearing representative found the Office failed to explain the reasons why
the Office did not award compensation as determined by Dr. Slutsky, the Office medical adviser.
Additionally, the hearing representative found the Office’s award of November 21, 2006
excluded five percent impairment for carpal tunnel impairment of each arm. The hearing
representative noted that appellant already received compensation for a total of 18 percent
impairment of the right arm and 16 percent impairment of the left arm and was entitled to an
additional 4 percent impairment of each upper extremity for a 22 percent total impairment of the
right upper extremity and 20 percent total impairment of the left upper extremity.
By decision dated July 19, 2007, the Office issued an additional schedule award of 4
percent for each arm, as determined by Dr. Slutsky’s opinion that appellant had a 22 percent
impairment of the right upper extremity and a 20 percent impairment of the left upper extremity
based on the accepted bilateral epicondylitis and bilateral carpal tunnel conditions. The period of
the award ran from November 20, 2004 to May 13, 2005 for a total of 24.96 weeks.
Appellant requested a review of the written record. He stated that records indicated he
previously received a seven percent rating for bilateral carpal tunnel syndrome, not five percent.
Appellant argued that the bilateral epicondylitis rating should have been combined with a seven
percent rating for bilateral carpal tunnel, not the five percent bilateral rating received.
By decision dated November 21, 2007, an Office hearing representative affirmed the
previous decision.

4

LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.6
Office procedures7 provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.8
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.9 Regarding carpal tunnel syndrome, the A.M.A., Guides
provide that:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present -(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described earlier.10
(2) Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG [electromyogram] testing of the

5

5 U.S.C. § 8107.

6

See 20 C.F.R. § 10.404 (1999). Effective February 1, 2001, the Office began using the A.M.A., Guides (5th
ed. 2001). See also Linda Beale, 57 ECAB 429 (2006).
7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003). See also Cristeen Falls, 55 ECAB 420 (2004).
8

A.M.A., Guides 491, 482, 484, 492, respectively; see Joseph Lawrence, Jr., 53 ECAB 331 (2002).

9

A.M.A., Guides 433-521.

10

Section 16.5b of the A.M.A., Guides describes the methods for evaluating upper extremity impairments due to
peripheral nerve disorders and provides that the severity of the sensory or pain deficit and motor deficit should be
classified according to Tables 16-10a and 16-11a respectively. The impairment is evaluated by multiplying the
grade of severity of the sensory or motor deficit by the respective maximum upper extremity value resulting from
sensory or motor deficits of each nerve structure involved. When both sensory and motor functions are involved,
the impairment values derived for each are combined. Id. at 481; Kimberly M. Held, 56 ECAB 670 (2005).

5

thenar muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed five percent of the upper extremity may
be justified.
(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”11
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.12
ANALYSIS
In a July 19, 2007 decision, the Office granted appellant an award for a 22 percent right
upper extremity impairment and a 20 percent left upper extremity impairment for his accepted
bilateral lateral epicondylitis and bilateral carpal tunnel conditions. It based its award on the
November 9, 2006 report of Dr. Slutsky, the Office medical adviser, who reached his medical
impairment ratings by incorporating the clinical findings of Dr. Brigham in his reports of
March 14, 2005 and August 25, 2006.
Dr. Brigham opined that appellant had 18 percent right arm impairment and a 16 percent
left arm impairment due to the accepted bilateral lateral epicondylitis conditions. This was based
on range of motion impairments of the elbows and sensory and motor deficits of the ulnar nerve.
In his November 9, 2006 report, the Office medical adviser, Dr. Slutsky, concurred with
Dr. Brigham’s findings and impairment calculations. Dr. Brigham found appellant had an above
midforearm ulnar nerve sensory and motor impairment. He properly found that, under Table 1615, the maximum upper extremity impairment for a sensory deficit was 7 percent and for a motor
deficit was 46 percent.13 Dr. Brigham then utilized Table 16-10 and determined that appellant
had a Grade 3 sensory impairment, which he rated at 60 percent and properly multiplied this
value with the maximum 7 percent sensory impairment to find that appellant had an above
midforearm ulnar nerve sensory impairment of 4 percent bilaterally. He also utilized Table 1611 and determined that appellant had a Grade 4 impairment, which he rated at 25 percent and
properly multiplied this value with the maximum 46 percent sensory impairment to find
appellant had an above midforearm ulnar nerve motor impairment of 11 percent bilaterally.
Dr. Brigham combined the sensory and motor impairment values of the ulnar nerve above
midforearm to find a total ulnar nerve impairment of 15 percent bilaterally. He also properly
determined that, on appellant’s right side, 129 degrees flexion resulted in one percent upper
extremity impairment and 19 degrees extension resulted in two percent impairment, for a total
11

A.M.A., Guides 495.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

A.M.A., Guides 492.

6

three percent right upper extremity impairment of the elbow joint.14 On the left side, 130 degrees
flexion equaled one percent upper extremity impairment and 5 degrees extension equaled a half
or one percent upper extremity impairment, for a total of two percent left upper extremity
impairment of the elbow joint.15 Dr. Brigham then properly utilized the Combined Values Chart
of the A.M.A., Guides to combine the various values for appellant’s arms.16 The Board notes
that this equates to 18 percent right upper extremity impairment and 17 percent left upper
extremity impairment.17
The Office medical adviser also noted that appellant was entitled to a five percent upper
extremity impairment for carpal tunnel syndrome for each upper extremity under page 495 item
2 of the A.M.A., Guides. This section of the A.M.A., Guides allows for an impairment rating not
to exceed five percent in situations where a person has normal sensibility and abnormal sensory
with optimal recovery time after surgical decompression. While appellant contends he
previously received a seven percent rating for carpal tunnel syndrome, there is no current
medical evidence of record to support any greater impairment for his carpal tunnel syndrome.
The record supports that bilateral carpal tunnel was evaluated based on page 495 item 2 of the
A.M.A., Guides, which allows for five percent impairment following optimal recovery from
carpal tunnel release. There is no current medical evidence to support a greater impairment for
carpal tunnel syndrome under the A.M.A., Guides.
The Board notes that the 18 percent right and 17 percent left epicondylitis rating
combined with 5 percent impairment for carpal tunnel syndrome for each upper extremity,
results in 22 percent right upper extremity impairment and 21 percent left upper extremity
impairment. Thus, appellant has an additional one percent impairment of the left arm beyond
that which was previously awarded.
CONCLUSION
The Board finds appellant has no more than 22 percent right upper extremity impairment,
for which he received a schedule award. The Board further finds that appellant has no more than
a 21 percent left upper extremity impairment and is entitled to an additional 1 percent
impairment for the left upper extremity.

14

See id. at 471-72, Figures 16-33 and 16-34.

15

Id.

16

See id. at 604-05, Combined Values Chart.

17

Dr. Brigham and the Office medical adviser found that appellant had 16 percent left upper extremity
impairment.

7

ORDER
IT IS HEREBY ORDERED THAT the November 21 and July 19, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed as modified.
Issued: February 4, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pickett, WI, Employer
__________________________________________

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

Docket No. 18-0082
Issued: July 12, 2018

Case Submitted on the Record

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

JURISDICTION
On October 6, 2017 appellant filed a timely appeal from an April 14, 2017 merit decision
and a September 12, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a left elbow
condition causally related to factors of her federal employment; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that she did not believe that, at the time of OWCP’s
decisions, all the information had been received.2
FACTUAL HISTORY
On January 14, 2017 appellant, then a 55-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she suffered from tennis elbow due to factors of her
federal employment. She did not submit any evidence in support of her claim.
By development letter dated February 3, 2017, OWCP informed appellant that additional
information was necessary to support her claim, including a detailed description of the
employment-related activities that she believed contributed to her condition as well as medical
evidence to establish causal relationship. It requested that she respond to an attached questionnaire
in order to substantiate the factual elements of her claim. Appellant was afforded 30 days to submit
the requested information.
In response, appellant submitted a note from Dr. Jeffrey W. Meincke-Reza, a Boardcertified orthopedic surgeon, indicating that appellant suffered from left lateral epicondylitis.
By decision dated April 14, 2017, OWCP denied appellant’s claim. It determined that she
had not established that specific employment events occurred as alleged. Therefore, OWCP denied
appellant’s claim finding that she failed to establish the factual component of her claim. It further
noted that she had not submitted medical evidence that established a diagnosed medical condition
causally related to an employment injury or event.
OWCP thereafter received additional reports and notes from Dr. Meincke-Reza, dated from
January 18 through May 16, 2017 regarding his ongoing medical treatment and his prescriptions
for various medications. In a report dated May 3, 2017, Dr. Meincke-Reza presented a narrative
regarding the history of appellant’s diagnosed condition. He related that she was first seen on
January 18, 2017 with a complaint of ongoing elbow pain along the lateral epicondylar ridge,
which had been present for four to five months, and which worsened when she performed her work
duties as a rural mail carrier. Dr. Meincke-Reza further explained that appellant performed a large
amount of mail sorting, wherein she repetitively grasped the mail and inserted it into carrier
devices, carried them to her vehicle, and then stuffed mailboxes from awkward positions while
driving.
On June 12, 2017 appellant requested reconsideration.
By decision dated September 12, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim. It noted that her claim was denied because she failed
to describe the employment-related activities which she believed caused or contributed to her

2

Appellant submitted new evidence to the Board on appeal. The Board’s jurisdiction is limited to the evidence that
was before OWCP at the time of its final decision. Therefore, the Board is precluded from considering this new
evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C.
Campbell, 5 ECAB 35, 36 n.2 (1952).

2

condition. Therefore, OWCP found that the medical evidence submitted was irrelevant or
immaterial with regard to the underlying issue of the case.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.5 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit the
following: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition; and
(3) medical evidence establishing that the employment factors identified by the claimant were the
proximate cause of the condition for which compensation is claimed or, stated differently, medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the claimant.6
Appellant’s burden of proof includes the submission of a detailed description of the
employment factors which he or she believes caused or adversely affected a condition for which
compensation is claimed.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof.
Appellant did not identify specific employment factors alleged to have caused her injury
on her claim form. In a February 3, 2017 development letter, OWCP informed her that the
evidence of record was insufficient as she had not described the employment factors alleged to
have caused her injury. Appellant was asked to describe those alleged work factors in detail, but
she did not respond to OWCP’s request for additional factual information. Accordingly, as she
failed to present a clear factual statement identifying specific employment factors or conditions

3

Supra note 1.

4

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

5

20 C.F.R. § 10.5(q).

6

T.C., Docket No. 17-0872 (issued October 5, 2017).

7

S.J., Docket No. 17-1798 (issued February 23, 2018).

3

alleged to have caused or contributed to her claimed medical condition, she has not met her burden
of proof.8
As appellant has not established the factual element of her claim, the Board will not address
the medical evidence with respect to causal relationship.9
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
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.11 Section 10.608(b) provides that
when a request for reconsideration is timely, but fails to meet at least one of these three
requirements, OWCP will deny the application for reconsideration without reopening the case for
a review on the merits.12
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
Appellant did not allege that OWCP erroneously applied or interpreted a specific point of
law or advance a legal argument not previously considered by OWCP. Thus, she is not entitled to
a review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(3).
Appellant submitted new medical reports from Dr. Meincke-Reza in support of her request
for reconsideration. In his May 3, 2017 report, Dr. Meincke-Reza related a history of specific
employment factors that she had related caused her elbow condition. To require merit review it is
not necessary that the new evidence be sufficient to discharge appellant’s burden of proof. Instead,
the requirement pertaining to the submission of evidence in support of reconsideration only
specifies that the evidence be relevant and pertinent and not previously considered by OWCP.13
If OWCP determines that the new evidence lacks probative value, it may deny modification of its
prior decision, but only after the case has been reviewed on the merits.14 It denied appellant’s
claim as she had not submitted evidence which established the factual element of her claim.
8

B.G., Docket No. 16-1454 (issued November 22, 2016); D.D., 57 ECAB 734 (2006).

9

See B.G., id.

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(3).

12

Id. at § 10.608(b).

13

See D.M., Docket No. 17-0038 (issued June 8, 2017).

14

See D.W., Docket No. 15-1225 (issued February 22, 2016); C.M., Docket No. 14-1887 (issued May 6, 2015).

4

Dr. Meincke-Reza’s description of her employment factors, as related to him by her, is therefore
relevant to the underlying issue. While the Board has previously noted that medical evidence is
not relevant to an underlying factual issue if the facts of the case are in dispute between the
employee and the employing establishment, a factual dispute did not exist in this case.15
The Board finds that appellant has submitted relevant and pertinent new evidence not
previously considered by OWCP which requires OWCP to reopen her claim for consideration of
the merits under 20 C.F.R. § 10.606(b)(3). Thus, OWCP’s denial of appellant’s request for review
of the merits of her claim constituted an abuse of discretion. Consequently, the case must be
remanded for OWCP to conduct an appropriate merit review of the claim. Following this and such
other development as deemed necessary, OWCP shall issue a merit decision.
CONCLUSION
OWCP improperly denied appellant’s request for reconsideration of the merits of her claim
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 14, 2017 is affirmed and the decision dated September 12, 2017 is set aside
and the case is remanded for further proceedings consistent with this opinion.
Issued: July 12, 2018
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
15

See E.L., Docket No. 16-0371 (April 13, 2016).

5