United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________
L.B., Appellant
and
DEPARTMENT OF THE NAVY, HUMAN
RESOURCES, Washington DC, Employer
_______________________________________

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

Docket No. 10-469
Issued: June 2, 2010

Oral Argument April 7, 2010

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

JURISDICTION
On December 8, 2009 appellant filed a timely appeal of the September 24, 2009 merit
decision of the Office of Workers’ Compensation Programs and a nonmerit decision issued
November 13, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained an injury on July 31, 2009 in the performance of duty; and (2) whether the Branch of
Hearings and Review properly denied her request for a review of the written record as untimely.
FACTUAL HISTORY
On August 18, 2009 appellant, then a 56-year-old police officer, filed a traumatic injury
claim alleging on July 31, 2009 she had a headache, fever of 102 degrees, nausea and was
dehydrated while performing her federal job duties. The Office requested additional information
from appellant and the employing establishment by letter dated August 20, 2009.

The employing establishment responded on August 21, 2009 and controverted appellant’s
claim on the grounds that she was alleging that “flu-like” symptoms caused her disability for
work. It noted that appellant filed a claim after she was transported by ambulance to the Sibley
Memorial Hospital Emergency Room on July 31, 2009. A note dated August 20, 2009 from the
employing establishment clinic indicated that appellant received a diagnosis of viral syndrome
and that on that date she was cleared to return to work without restrictions. On July 31, 2006
appellant received discharge instructions from Sibley Memorial Hospital diagnosing viral
syndrome.
By decision dated September 24, 2009, the Office denied appellant’s claim findings that
she failed to submit the necessary factual and medical evidence to establish her claim. Appellant
requested a review of the written record on October 28, 2009.
By decision dated November 13, 2009, the Branch of Hearings and Review denied
appellant’s request for review of the written record as untimely and stated that her claim could be
addressed by requesting reconsideration from the Office and submitting evidence not previously
considered.
At the oral argument, appellant alleged that the employing establishment called for the
ambulance and that the employing establishment should be responsible for her medical expenses
as a result of her transport to the hospital.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing 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 the Act and that the claim was timely filed within the
applicable time limitation period of the Act, 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
1

5 U.S.C. §§ 8101-8193.

2

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

3

Elaine Pendleton, 40 ECAB 1143 (1989).

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background, supporting such a causal relationship.4 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.5
ANALYSIS -- ISSUE 1
Appellant filed a claim alleging on July 31, 2009 she developed a fever, headache and
nausea while performing her federal job duties. The record establishes that she was transported
to the hospital due to these symptoms and diagnosed with viral syndrome. However, the Board
finds that there is no factual or medical evidence attributing appellant’s diagnosed condition to
her federal duties on July 31, 2009. Appellant has not implicated specific aspects of her federal
employment which she felt caused or contributed to her diagnosed condition. Furthermore, the
medical evidence does not contain any statement relating her viral syndrome to her employment
or explaining the nature of any relationship between appellant’s condition and her employment.
As the record lacks the necessary factual and medical evidence to support appellant’s claim, the
Board finds that she did not meet her burden of proof to establish a traumatic injury on
July 31, 2009.
The Office, however, did not adjudicate the issue of appellant’s incurred medical
expenses. It has broad discretionary authority in the administration of the Act to achieve the
objective of section 8103.6 It has discretionary authority to approve unauthorized medical care
which it finds necessary and reasonable and is required to exercise that discretion.7 Ordinarily,
when an employee sustains a job-related injury which may require medical treatment, the
designated agency official shall promptly authorize such treatment by giving the employee a
properly executed Form CA-16 authorizing medical treatment and expenses within four hours.8
The federal regulations provide that in unusual or emergency circumstances the Office may
approve payment for medical expenses incurred otherwise than as authorized in section 10.303.9
It may approve payment for medical expenses incurred even if a Form CA-16 authorizing

4

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

5

James Mack, 43 ECAB 321 (1991).

6

5 U.S.C. § 8103.

7

Michael L. Malone, 49 ECAB 194 (1997); Thomas W. Keene, 42 ECAB 623 (1991); Val D Wynn, 40 ECAB
666 (1989).
8

20 C.F.R. § 10.300(b).

9

Id. at § 10.304.

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medical treatment and expenses has not been issued and the claim is subsequently denied;
payment in such situations must be determined on a case-by-case basis.10
Appellant developed “flu-like” symptoms including a fever of 102 degrees on July 31,
2009 while performing her duties as a police officer. The evidence of record suggests that the
employing establishment arranged for her transport by ambulance to a local hospital. In denying
appellant’s claim for a traumatic injury, the Office did not consider whether emergency
circumstances or unusual circumstances were present or whether this was a situation in which
reimbursement of medical expenses was appropriate. The circumstances of the case warrant
additional development of this issue. The case will be remanded to the Office for further
development consistent with this decision of the Board, followed by an appropriate decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act,11 concerning a claimant’s entitlement to a hearing before an
Office representative, states: “Before review under section 8128(a) of this title, a claimant ... not
satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after the
date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”12
The Board has held that section 8124(b)(1) is “unequivocal” in setting forth the time
limitation for requesting hearings. A claimant is entitled to a hearing as a matter of right only if
the request is filed within the requisite 30 days.13 Even where the hearing request is not timely
filed, the Office may within its discretion, grant a hearing and must exercise this discretion.14
Section 20.615 of Title 20 of the Code of Federal Regulations provides in part: “Initially,
the claimant can choose between two formats: An oral hearing or a review of the written
record.”15
ANALYSIS -- ISSUE 2
The Branch of Hearings and Review determined that appellant’s October 28, 2009
request for a review of the written record was not timely filed as it was submitted more than 30
days after issuance of the Office’s September 24, 2009 decision. The Branch of Hearings and
Review properly denied appellant’s request for review of the written record as a matter of right.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter
3.300.3(a) (October 1990).
11

5 U.S.C. §§ 8101-8193.

12

Id. at § 8124(b)(1).

13

Tammy J. Kenow, 44 ECAB 619 (1993).

14

Id.

15

20 C.F.R. § 10.615; see also P.P., 58 ECAB 673 (2007).

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The Branch of Hearings and Review proceeded to exercise its discretion, in accordance
with Board precedent, to determine whether to grant a review of the written record in this case.
It determined that a review of the written record was not necessary as the issue in the case was
medical in nature and could be resolved through the submission of additional evidence in the
reconsideration process. The Branch of Hearings and Review properly denied appellant’s
request for a review of the written record as untimely and exercised its discretion in denying her
request for a review of the written record as she had other review options available.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury on
July 31, 2009. The Board further finds that appellant did not timely request a review of the
written record. The case is returned to the Office for adjudication of appellant’s reimbursement
of medical expenses related to her treatment on July 31, 2009.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2009 decision of the Branch of
Hearings and Review is affirmed. The September 24, 2009 decision of Office of Workers’
Compensation Programs is affirmed in part and set aside and remanded for further development
consistent with this decision of the Board.
Issued: June 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Chicago, IL, Employer
__________________________________________

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

Docket No. 21-0197
Issued: June 11, 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 October 14, 2020 appellant filed a timely appeal from a September 23, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition causally related to the accepted August 16, 2020 employment incident.
FACTUAL HISTORY
On August 17, 2020 appellant, then a 43-year-old enumerator, filed a traumatic injury
claim (Form CA-1) alleging that she developed anxiety and ringing in her ears on August 16, 2020
when two vehicles drove by and individuals in the vehicles fired automatic rifles at each other
1

5 U.S.C. § 8101 et seq.

while she was conducting an interview in the performance of duty. On the reverse side of the
claim form appellant’s supervisor indicated that she stopped work on August 16, 2020.
In a development letter dated August 18, 2020, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
In response to OWCP’s development questionnaire, appellant related that she was
conducting interviews outside of a home when she had to duck and take cover after hearing gun
shots. She explained that she suffered from anxiety, nervousness, and had a hard time breathing.
Appellant also noted that she was diagnosed with post-traumatic stress disorder and was waiting
for her physician to provide a medical report.
OWCP received a claim for loss of or damage to personal property form, which indicated
that on August 16, 2020 a bullet grazed the driver’s door and front hood of appellant’s vehicle,
and struck the driver’s side mirror.
Appellant submitted an employing establishment form report of injury and property
damage dated August 19, 2020, which was signed by her supervisor. Her supervisor related that
appellant had been in the midst of a drive-by shooting while conducting an interview. She related
that the gunshots traumatized appellant and damaged her vehicle.
Appellant also submitted a motor vehicle accident report received on September 18, 2020.
In this report, she related that her vehicle’s side mirror, driver’s side door, and hood were struck
by bullets.
By decision dated September 23, 2020, OWCP accepted that the August 16, 2020 incident
occurred, as alleged, but denied appellant’s claim, finding that the medical evidence of record was
insufficient to establish a diagnosed condition causally related to the accepted August 16, 2020
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

2

Id.

3
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

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to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition causally related to the accepted August 16, 2020 employment incident.
By development letter dated August 18, 2020, OWCP advised appellant that medical and
factual evidence was necessary to establish her claim. It explained that she should submit a
medical report, which provided a medical diagnosis and which explained how the diagnosed
medical condition was caused or aggravated by the alleged employment incident. The Board has
explained that, without a medical diagnosis, an employee has not presented prima facie evidence
of an emotional condition.9 In support of her claim, appellant submitted a response to the
questionnaire, a claim for loss of or damage to personal property form, a report of property
damages, and motor vehicle accident report. However, she did not submit medical evidence. As
4
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

O.P., Docket No. 19-0445 (issued July 24, 2019); L.H., Docket No. 18-1217 (issued May 3, 2019); S.C., Docket
No. 16-0293 (issued May 10, 2016); A.C., Docket No. 08-1453 (issued November 18, 2008) (as there was no medical
evidence diagnosing an emotional condition, appellant failed to establish a prima facie claim).

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there is no medical evidence of record establishing that appellant’s alleged post-traumatic stress
disorder was causally related to the employment incident, the Board finds that appellant has not
met her burden of proof to establish a diagnosed medical condition causally related to the accepted
August 16, 2020 employment incident.10
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition causally related to the August 16, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2021
Washington, DC

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

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

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

10

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
GARRISON, Fort McPherson, GA Employer
__________________________________________

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

Docket No. 10-1197
Issued: February 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 26, 2010 appellant filed a timely appeal from the February 25, 2010 merit
decision of the Office of Workers’ Compensation Programs, which terminated her wage-loss
compensation and medical benefits effective March 13, 2009. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits.
On appeal, appellant contends that she suffered from multiple injuries as a result of her
employment injury and that these had not resolved. She contends that the weight of the medical
evidence should be given to her treating physician.1
1

On appeal, appellant submitted new medical evidence. The Board’s jurisdiction is limited to the evidence that
was before the Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). The Board may not
consider this evidence for the first time on appeal.

FACTUAL HISTORY
On June 2, 2005 appellant, then a 55-year-old human resources assistant, filed a traumatic
injury claim alleging that, on June 1, 2005, during the course of her federal employment, she was
going down stairs with a cake in her hand and slipped and fell onto her knees and then onto her
head. She listed her injuries as fractured tibula, bruised forehead and bruise under her right eye.
On August 10, 2005 the Office accepted appellant’s claim for fracture left upper end fibula,
closed; bilateral contusion of knee/lower leg; and contusion of face, scalp and neck. On
October 25, 2006 it also accepted her claim for rotator cuff syndrome right shoulder. On
March 29, 2007 appellant underwent right rotator cuff repair shoulder surgery.
On January 11, 2008 the Office referred appellant to Dr. Raghuram Kolanu, a Boardcertified neurologist, for a second opinion. In a January 25, 2008 report, Dr. Kolanu stated that
she suffered a left leg injury and contusions as a result of a fall in June 2005. He noted that
neurological examination was essentially unremarkable except for some restriction of back
movement. Dr. Kolanu opined that appellant’s work-related conditions of left fibular fracture,
contusion of knee and leg, contusion of face, scalp and neck and rotator cuff syndrome had
resolved with no residuals. He did not believe that she required any restrictions as a result of the
June 1, 2005 employment injury.
The Office sent the report of Dr. Kolanu to appellant’s treating Board-certified
neurologist, Dr. Kenneth Lazarus, for comments. In an October 2, 2008 report, Dr. Lazarus
stated that she was currently suffering from fibromyalgia syndrome, depression, obstructive
sleep apnea syndrome and cervical spondylosis. He noted that these work conditions had not
resolved and were still medically present and disabling. Dr. Lazarus also noted that appellant
had a history of shoulder surgery from rotator cuff syndrome. He stated that he did not anticipate
any significant improvement or resolution in her fibromyalgia syndrome or resultant depression
and stated that she was currently disabled for work and did not appear to be capable of
performing work with restrictions.
On February 19, 2009 the Office referred appellant to Dr. Mark Irwin Harris, a Boardcertified neurologist, for an impartial medical examination to resolve the conflict between the
opinion of appellant’s physician, Dr. Lazarus, and the second opinion physician, Dr. Kolanu,
with regard to her continuing residuals from her employment injury. In an April 13, 2009 report,
Dr. Harris assessed appellant with postconcussion syndrome secondary to the employment
injury. He noted that most likely the majority of her symptoms are due to the postconcussion
syndrome. Dr. Harris also noted post-traumatic headaches but also noted 30 years of preexisting
history of migraine headaches. He stated that, with regard to generalized pain, there appeared to
be a fair amount of symptom magnification. Dr. Harris stated that, if appellant did have
fibromyalgia, the relationship of this to the injury was deferred to rheumatology. He
recommended referral to a rheumatologist to determine if the fibromyalgia was related to her
work injury and the best course of treatment for her fibromyalgia. Dr. Harris noted that appellant
had right shoulder pain but deferred any comments regarding shoulder pain and its relationship
to her work injury to orthopedic physicians. He opined that as a result of her employment injury
she had several injuries including multiple contusions, fibular fracture and rotator cuff injury, all
of which have resolved. Dr. Harris did note that appellant was continuing to complain of
headaches. From a neurological viewpoint, he believed that she could return to work with no

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restrictions. In response to questions from the Office sent on April 16, 2009, Dr. Harris stated
that the on-the-job injury aggravated appellant’s headaches. He noted that the aggravation of the
headaches at this point may be permanent.
By letter dated April 23, 2009, the Office referred appellant to Dr. Michael Friedman, a
Board-certified internist and rheumatologist, and Dr. Alexander Doman, a Board-certified
orthopedic surgeon, for second opinion examinations.
In a May 7, 2009 report, Dr. Doman noted a normal orthopedic evaluation. He opined,
“It is my firm and definite opinion that [appellant’s] work-related condition of contusion of her
knees, legs and rotator cuff syndrome have fully and completely resolved. There are no
objective findings to support any residual conditions relating to her injury.” Dr. Doman also
opined that there were no objective findings that appellant’s current condition was the result of
her work factors. He explained that any subjective complaints that she had were related to
fibromyalgia, which is not work related. Dr. Doman also noted that appellant’s subjective
complaints outweighed the objective findings and, in fact, there were no objective findings to
substantiate her complaints. He noted that she had no medical restrictions as a result of her
June 1, 2005 work injury. Dr. Doman noted his firm belief that appellant’s work-related
conditions of contusion of her knees, legs and rotator cuff syndrome have fully and completely
resolved.
In a May 24, 2009 report, Dr. Friedman opined that appellant’s problem was primarily
fibromyalgia and that this represents a chronic, debilitating disabling condition that will never be
resolved. When asked if the fibromyalgia was related to her work injury, he indicated that the
cause of the fibromyalgia was unknown and can therefore not be ascribed to any specific event.
Dr. Friedman believed that appellant’s restrictions were based on arthritis, which was a separate
condition. He opined that she was suffering from an undiagnosed and untreated inflammatory
arthropathy. Dr. Friedman noted that this entity is actually what is perpetuating appellant’s work
disability and is of fairly recent onset. He noted that her case was complicated by the presence
of some type of painful neuropathy, perhaps related to her diabetes.
On January 26, 2010 the Office proposed to terminate appellant’s medical benefits and
compensation for wage loss. On February 25, 2010 the proposed termination of benefits was
made final effective March 13, 2010.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion

2

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

3

Vivien L. Minor, 37 ECAB 541 (1986).

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evidence based on a proper factual and medical background.4 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, the Office must establish that the claimant no
longer has residuals of an employment-related condition, which requires further medical
treatment.5
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.6 When there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7
ANALYSIS
The Office accepted appellant’s claim for fracture of the left upper end tibula; bilateral
contusions of the knee, lower leg; contusions of the face, scalp and neck and rotator cuff
syndrome. Appellant’s physician, Dr. Lazarus, stated that appellant continued to suffer from
fibromyalgia syndrome, depression, obstructive sleep apnea and cervical spondylosis.
Dr. Kolanu, the second opinion physician, opined that her work-related conditions of left fibular
fracture, contusion of the knee and leg, contusion of face, scalp and neck and rotator cuff
syndrome had resolved with no residuals. Accordingly, he believed that appellant’s accepted
work injuries had resolved.
As there was a difference in opinion between appellant’s treating physician and the
second opinion physician as to whether appellant had any residuals from her employment-related
injury, the Office referred her for an impartial medical examination with Dr. Harris, who opined
that as a result of her employment injury she had several injuries including multiple contusions,
fibular fracture and rotator cuff injury, all of which have resolved. Dr. Harris noted that her
subjective complaints were markedly disproportionate to her physical findings. He opined that
appellant continued to suffer from headaches that were related to her employment injury.
Although Dr. Harris indicated that it was very common for a head injury to trigger or exacerbate
migraine-type headaches in appellant, he did not explain why he believed that the work injury
was still the cause of the headaches in her case. He indicated that he would defer to a
rheumatologist with regard to whether her fibromyalgia was related to her work injury and would
defer to an orthopedic physician with regard to the relationship between her shoulder pain and
her injury. The Office then referred appellant to Dr. Doman for an orthopedic evaluation.
Dr. Doman opined that her work-related condition of contusion of her knees, legs and rotator
cuff syndrome had fully resolved. The Office also referred appellant to Dr. Friedman for a
rheumatology report. Dr. Friedman found that he was uncertain as to the cause of her
4

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

5

E.J., 59 ECAB 695 (2008).

6

5 U.S.C. § 8123(a).

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

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fibromyalgia, but believed that her restrictions were based on arthritis. The Office determined
that the reports of Drs. Harris, Friedman and Doman established that appellant’s accepted
conditions of left fractured fibula in both knees, leg contusions, face contusion and right shoulder
rotator cuff syndrome had ceased or were no longer injury related and terminated benefits.
In terminating appellant’s benefits, the Office failed to follow its procedures. Dr. Harris,
the impartial medical examiner, indicated that he would defer to a rheumatologist and an
orthopedist to resolve issues with regard to the causal relationship between appellant’s
employment and her fibromyalgia and shoulder pain. The Office referred her for these
appointments to Dr. Doman and Dr. Friedman for second opinions. However, the Office’s
procedure manual clearly states that if a referral physician needs information from another
provider he should make subsidiary referrals as necessary. The impartial medical examiner will
then write a summary report discussing any discrepancies among the physician’s viewpoints so
that the questions posed by the Office are fully answered.8
In the instant case, the Office gave undue weight to the opinions of Drs. Doman and
Friedman, who are second opinion physicians, not impartial medical examiners. If there is an
unresolved conflict, the conflict must be resolved by an impartial medical examiner, not a second
opinion physician. The Office erred in terminating appellant’s compensation benefits based in
part on the opinions of second opinion physicians who could not resolve the conflict in the
medical evidence. The conflict in medical evidence with regard to remaining residuals due to
her employment injury remains unresolved.
In the instant case, as there remains an unresolved conflict with regard to remaining
residuals from the accepted injury, the Board finds that the Office has not met its burden to
justify the termination of compensation.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s wage-loss
compensation and medical benefits.

8

I.H., 60 ECAB ___ (Docket No. 08-1352, issued December 24, 2008); Harold Travis, 30 ECAB 1071 (1979);
see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Referee Examinations,
Chapter 3.500.4 (May 2003).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 25, 2010 is reversed.
Issued: February 14, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF TRANSPORTATION,
TRANSPORTATION SECURITY
ADMINISRTRATION, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 08-459
Issued: August 13, 2008

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 November 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 1, 2006, regarding the suspension of
compensation. The record also contains decisions dated July 9 and October 9, 2007, denying
merit review of the claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly suspended appellant’s compensation
effective October 2, 2005 pursuant to 5 U.S.C. § 8123(d); and (2) whether the Office properly
determined appellant’s applications for reconsideration were insufficient to warrant merit review
of the claim pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
The Office accepted that appellant sustained a lumbar sprain, aggravation of lumbosacral
spondylosis and aggravation of lumbar spinal stenosis in the performance of duty on
January 12, 2003.
Appellant stopped working on May 16, 2003 and began receiving
compensation for wage loss. He was referred for vocational rehabilitation services. On March 8,
2005 appellant underwent a functional capacity evaluation.
By letter dated August 17, 2005, the Office advised appellant that he was being referred
to an orthopedic surgeon for a second opinion examination. Appellant was advised of the
provisions of 5 U.S.C. § 8123(d) regarding refusal to submit to or obstruction of an examination.
In a letter dated August 19, 2005, he was advised of a scheduled examination on September 1,
2005 with Dr. William K. Jones, an orthopedic surgeon located in Santa Fe, New Mexico.
Appellant failed to appear for the scheduled examination.
In a letter dated September 8, 2005, the Office issued a notice of proposed suspension of
compensation for failure to appear for the scheduled examination. Appellant was directed to
respond within 14 days. By letter dated September 2, 2005, received by the Office on
September 12, 2005, appellant’s representative argued that Dr. Jones “has a contract with
Baybrook Medical Services that compromises his independent judgment and erodes his
credibility.”
The Office responded by letter dated September 14, 2005, noting that the referral to
Dr. Jones was as a second opinion examination, not a referee to resolve a conflict. According to
the Office scheduling of second opinion examinations was handled by private contractor,
Baybrook Medical Services, and Dr. Jones was one of two orthopedic surgeons used in the
Albuquerque/Santa Fe area. It was explained that the other orthopedic surgeon, Dr. Richard
Castillo, had a previous involvement in the case and therefore Dr. Jones was selected as the
second opinion examiner.1 The Office found the reasons offered by appellant were not valid and
his continued refusal to undergo the examination would result in suspension. In a letter dated
September 13, 2005, received by the Office on September 19, 2005, appellant again argued that
Dr. Jones was not acceptable and would not provide an impartial opinion.
By decision dated September 23, 2005, the Office suspended appellant’s compensation
pursuant to 5 U.S.C. § 8123(d) effective October 2, 2005. It found that he did not attend the
scheduled examination with Dr. Jones and failed to provide justification.

1

Appellant was treated by Dr. Castillo on February 20, 2003 as an attending physician.

2

In a letter dated October 25, 2005, appellant argued that the Office failed to locate an
orthopedic surgeon in the Albuquerque area, rather than Santa Fe, as required by the Board in
Billie J. Gardner.2 By letter dated December 31, 2005, he requested reconsideration of his
claim.
In a decision dated February 8, 2006, the Office denied the request without merit review
of the claim. Appellant again requested reconsideration by letter dated February 15, 2006. He
argued that all referral physicians must be impartial and Dr. Jones was a biased physician under
contract with Baybrook Medical Services. Appellant cited the case of Maura D. Fuller
(Judson H. Fuller).3
By decision dated April 13, 2006, the Office declined to review the case on its merits. In
an April 17, 2006 letter, appellant again requested reconsideration. He referred to another file
number alleging that in that case the reports of Dr. Jones were disallowed because Dr. Jones
claimed he reviewed x-rays, when he had not done so.
In a decision dated December 1, 2006, the Office reviewed the case on its merits and
denied modification. It stated that, in the case referred to by appellant, Dr. Jones had been on
one side of a conflict that was resolved by a referee physician, with no indication his reports
were disallowed.
The record indicates that appellant agreed to attend a second opinion examination by
letter dated December 18, 2006 and his compensation for wage loss was reinstated. By letter
dated June 20, 2007, he requested reconsideration. Appellant stated that Dr. Jones had been used
in five cases over a short period by the Office and Dr. Jones was biased and unprofessional.
By decision dated July 9, 2007, the Office denied the request for reconsideration without
merit review of the claim. Appellant again requested reconsideration by letter dated
August 14, 2007. In a decision dated October 9, 2007, the Office denied the request for
reconsideration without merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
Section § 8123(a) provides that “an employee shall submit to examination by a medical
officer of the United States or by a physician designated or approved by the Secretary of Labor,
after the injury and as frequently and at the times and places as may be reasonably required.”
The regulations governing the administration of the Federal Employees’ Compensation Act also
provide that “the employee must submit to an examination by a qualified physician as often and
at such times and places as [the Office] considers reasonably necessary.”4
2

53 ECAB 356 (2002). In that case the claimant was referred for a second opinion examination in Oklahoma,
City, Oklahoma, although the claimant lived in Batesville, Arkansas. The Board noted that appellant lived near a
major metropolitan area in Little Rock, Arkansas and the referral was unreasonable as the Office did not document
any attempt to locate an appropriate specialist in the claimant’s area.
3

54 ECAB 386 (2003).

4

20 C.F.R. § 10.320.

3

Section 8123(d) of the Act provides that, “if an employee refuses to submit to or
obstructs an examination, his right to compensation under this subchapter is suspended until the
refusal or obstruction stops.” According to the Office’s procedures, if the claimant does not
report for a scheduled appointment, he or she should be asked in writing to provide an
explanation within 14 days and if good cause is not established, compensation should be
suspended in accordance with 5 U.S.C. § 8123(d).5
ANALYSIS -- ISSUE 1
The Office referred appellant for a second opinion examination by Dr. Jones for an
opinion as to his current condition and employment-related disability. There is no evidence that
the referral for a second opinion was unreasonable, as appellant was receiving compensation for
wage loss and the Office was attempting to determine the degree of continuing employmentrelated disability.
Appellant was advised of the scheduled appointment with Dr. Jones on September 1,
2005 and failed to appear for the scheduled examination. The Office provided appellant with an
opportunity to provide good cause for not appearing at the examination. Prior to the
September 23, 2005 final decision, appellant argued that Dr. Jones was not impartial as he was
under contract by the private contractor used by the Office to schedule second opinion
examinations. Dr. Jones was not, however, selected for a “referee examination” to resolve a
conflict under 5 U.S.C. § 8123(a).6 Asecond opinion physician is a physician “making the
examination for the United States” under 5 U.S.C. § 8123(a) and the examination is typically
scheduled through medical second opinion service contractors, as in this case.7 The argument
that Dr. Jones was under contract with the private contractor used by the Office provides no
justification for a failure to appear for a scheduled second opinion examination.
In his February 15, 2006 application for reconsideration, appellant appeared to allege that
second opinion physicians must be “impartial” as a referee examiner, citing the Fuller case.8 In
Fuller the Board affirmed a finding that the Office properly suspended appellant’s compensation
for failure to appear at a scheduled referee examination. The reasons provided by the claimant,
such as his belief that there was no conflict or that the referee physician was not properly
selected as he had performed second opinion examinations, did not constitute good cause for
failure to appear. The Fuller case does not support an argument that Dr. Jones was unqualified
or not properly selected as a second opinion physician.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000).
6

5 U.S.C. § 8123(a) provides that, if there is a disagreement between a physician making the examination for the
Untied States and the employee’s physician, a third physician shall be appointed. This is called a referee
examination. 20 C.F.R. § 10.321(b).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.9(a) (June 2002).
8

Supra note 3.

4

Following the September 23, 2005 decision, appellant raised the argument that the
referral to Dr. Jones was unreasonable as he lived in Albuquerque and Dr. Jones was located in
Santa Fe, citing Gardner9 in support of his argument. The Gardner case is not applicable to the
circumstances of the present case. Unlike Gardner, appellant did not raise the argument until
after the scheduled appointment and after the final decision suspending compensation.
Moreover, in Gardner the scheduled appointment was over 400 miles from the claimant’s
residence, while in this case Santa Fe is approximately 60 miles from Albuquerque. The Office
had explained to appellant in its September 14, 2005 letter, that Dr. Jones was the only
orthopedic surgeon in the Santa Fe/Albuquerque area for the second opinion examination as
Dr. Castillo had a prior involvement in the case. The Board finds that appellant did not provide
good cause for failing to appear at the September 1, 2005 scheduled examination in Santa Fe,
New Mexico based on the travel requirement.
With respect to the evidence before the Office at the time of the December 1, 2006 merit
decision, there is no evidence to establish that appellant had good cause for failing to appear at
the scheduled examination by Dr. Jones. It complied with established procedures and provided
appellant an opportunity to provide supporting evidence prior to suspension of compensation.
The Board accordingly finds that appellant refused to submit to an examination and the Office
properly suspended appellant’s compensation pursuant to 5 U.S.C. § 8123(d).
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.10
The employee shall exercise this right through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”11
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.12
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the

9

Supra note 2.

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.605 (1999).

12

Id. at § 10.606(b)(2).

5

request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.13
ANALYSIS -- ISSUE 2
In an application for reconsideration dated June 20, 2007, appellant asserted that there
were three cases that had not been considered with respect to suspension of compensation. He
cited Alfred R. Anderson,14 Lynn C. Huber,15 and Brenda C. McQuisition.16 These cases do not
show that the Office erroneously applied or interpreted a specific point of law or advance a
relevant legal argument not previously considered by the Office. The Anderson and Huber cases
involve suspension of compensation for failure to appear for a referee examination and provide
no relevant legal argument or evidence to the present case. The McQuiston case involved a
termination of benefits based on a referee report and provides no relevant evidence or argument
to the issue presented. Where the legal argument presented has no reasonable color of validity,
the Office is not required to reopen the case for merit review.17
The August 14, 2007 application for reconsideration provided no additional evidence or
argument. The Board finds that appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit relevant and pertinent evidence not previously considered by the Office.
Since appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2), the Office
properly denied the applications without merit review of the claim.
CONCLUSION
The Office properly suspended appellant’s compensation under 5 U.S.C. § 8123(d)
because he failed to appear for a scheduled second opinion examination and did not provide
good cause for such failure. The applications for reconsideration did not meet the requirements
of 20 C.F.R.§ 10.606(b)(2) and the Office properly declined to reopen the case for merit review.

13

Id. at § 10.608.

14

54 ECAB 179 (2002).

15

54 ECAB 281 (2002).

16

54 ECAB 816 (2003).

17

See Norman W. Hanson, 40 ECAB 1160 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 9 and July 9, 2007 and December 1, 2006 are affirmed.
Issued: August 13, 2008
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

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

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

Docket No. 14-755
Issued: September 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 20, 2014 appellant filed a timely appeal from the November 12, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s claim for wage-loss
compensation for the period July 22 through September 20, 2013.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to the record following OWCP’s November 12,
2013 decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of
its final review. 20 C.F.R. § 501.3(c).

FACTUAL HISTORY
On June 4, 2013 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date, she sustained an injury to her back when she picked up
buckets of mail, turned and felt a “pop” in the middle of her back with instant pain. She stopped
work on that date.
An OWCP Form CA-16, authorization for examination and/or treatment, was issued by
the employing establishment on June 4, 2013. Appellant was authorized to visit Dr. Les T.
Sandknop, a Board-certified osteopath.
In the attached attending physician’s report,
Dr. Sandknop noted that appellant had a slow gait and limited range of movement and pain in the
thoracic and lumbar spine. He stated that appellant gave him a history of injury of picking up
buckets, turning and feeling a sharp pain in her back. Dr. Sandknop checked a box indicating
that the diagnosed conditions were causally related to her employment and noted that she was
totally disabled starting June 4, 2013.
On July 26, 2013 appellant’s claim was accepted for thoracic sprain of the back and
lumbar sprain of the back. Appellant received continuation of pay from June 5 through
July 19, 2013.
Appellant filed claims for wage-loss compensation alleging that she was totally disabled
due to her accepted conditions from July 22 through September 20, 2013.
In treatment notes dated June 6 and July 8, 2013, Dr. Sandknop assessed appellant with
lumbago and sprains and strains and examined her. He recommended that she not work.
Appellant submitted progress notes from a registered nurse dated from June 28 through
August 22, 2013.
In a duty status report dated June 18, 2013, Dr. Sandknop diagnosed appellant with
thoracic and lumbar sprain and recommended that she not return to work. He noted that she had
been injured by lifting buckets of mail. Dr. Sandknop continued to recommend that appellant be
off work in duty status reports through July 8, 2013. In the July 8, 2013 duty status report, he
noted that her next appointment with him was on July 22, 2013. In duty status reports dated
from July 22 through August 2, 2013, Dr. Sandknop continued to recommend that appellant be
off work. Dr. Sandknop advises that he examined appellant on these dates. In an August 22,
2013 duty status report, a person with an illegible signature noted that appellant’s next
appointment with him was on September 20, 2013.
By letter dated July 19, 2013, Dr. Sandknop stated that appellant was “out of work due to
a sprained lumbar injury and cannot work due to lifting.” He noted that she had been off work
since June 4, 2013, when she sprained her back.
Appellant underwent a magnetic resonance imaging (MRI) scan on August 9, 2013 by
Dr. Michael J. Sze, a Board-certified radiologist, who noted a diffuse disc bulge and facet
hypertrophy without neural compromise at L4-5, and a minimal one millimeter center disc
protrusion with facet hypertrophy and no neural compromise at L5-S1.

2

By letter dated August 12, 2013, OWCP requested that Dr. Sandknop report on
appellant’s ability to return to work by providing diagnosed conditions and medical findings
supporting continued disability.
In a work capacity evaluation dated August 22, 2013, Dr. Sandknop stated that appellant
was incapable of performing her usual job. He noted that she could work up to four hours per
day, with restrictions of no pushing, pulling, lifting, squatting, kneeling or climbing.
On August 23, 2013 Dr. Craig B. Lankford, Board-certified in physical medicine and
rehabilitation, diagnosed appellant with persistent low back pain and lumbar degenerative
spondylosis at L4-5 and L5-S1. He noted that her underlying condition had been aggravated
from lifting a mail crate at work. Dr. Lankford performed a physical examination, noting a
restricted lumbar range of motion for flexion and extension.
Appellant submitted two undated work excuse notes signed by a registered nurse. She
also submitted an unsigned response to OWCP’s August 12, 2013 letter.
Appellant submitted summaries of office visits from September 20 through October 31,
2013, and a medical source statement dated November 5, 2013, each signed by a registered
nurse. She also submitted physical therapy notes dated from September 6 through October 9,
2013, signed by a physical therapist.
In a duty status report dated September 20, 2013, a person with an illegible signature
stated that appellant should not return to work.
By letter dated October 9, 2013, OWCP informed appellant that the information
submitted was insufficient to establish her claim. It requested that she submit evidence
supporting disability for the relevant period. It provided her 30 days to submit the required
evidence.
Appellant submitted an unsigned work excuse slip dated October 11, 2013, which stated
that she could return to work on October 11, 2013 on light duty.
In a work capacity evaluation dated October 11, 2013, Dr. Sandknop stated that appellant
could work with restrictions of no more than four hours of repetitive wrist and elbow
movements; no more than one hour of lifting, squatting, kneeling, or climbing; pushing, pulling,
and lifting no more than five pounds; and breaks of fifteen minutes every four hours. He noted
that appellant could work only four hours per day and estimated that the restrictions would apply
for one month.
In a duty status report dated October 15, 2013, Dr. Sandknop stated that appellant should
not return to work. He noted that her next appointment was scheduled for November 11, 2013.
On October 25, 2013 Dr. Lankford noted that appellant still experienced back pain after
four weeks of physical therapy. He examined her, noting a restricted lumbar range of motion on
flexion and extension.

3

In a duty status report dated October 31, 2013, Dr. Sandknop stated that appellant could
return to work on light duty for four hours per day.
By decision dated November 12, 2013, OWCP denied appellant’s claim for
compensation for the period July 22 through September 20, 2013. It found that the evidence did
not establish that she was disabled during the claimed period as a result of her accepted injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.3 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.5 The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so, would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.7 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.8
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.9 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.10
3

See Amelia S. Jefferson, 57 ECAB 183, 187 (2005); see also Nathaniel Milton, 37 ECAB 712, 722 (1986);
Joseph M. Whelan, 20 ECAB 55, 57 (1968).
4

See Amelia S. Jefferson, id. See also David H. Goss, 32 ECAB 24, 27 (1980).

5

See Edward H. Horton, 41 ECAB 301, 303 (1989).

6

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

7

See Viola Stanko (Charles Stanko), 56 ECAB 436, 443 (2005); see also Naomi A. Lilly, 10 ECAB 560, 57273 (1959).
8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (2005).

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

4

With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care for injuries.11 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition. OWCP’s obligation
to pay for medical expenses and expenses incidental to obtaining medical care, such as loss of
wages, extends only to expenses incurred for treatment of the effects of any employment-related
condition. Appellant has the burden of proof, which includes the necessity to submit supporting
rationalized medical evidence.12
OWCP’s procedure manual provides that wages lost for compensable medical
examination or treatment may be reimbursed.13 It notes that a claimant who has returned to work
following an accepted injury or illness may need to undergo examination or treatment and such
employee may be paid compensation for wage loss while obtaining medical services and for a
reasonable time spent traveling to and from the medical provider’s location.14 As a rule, no more
than four hours of compensation or continuation of pay should be allowed for routine medical
appointments. Longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care.15
ANALYSIS
Appellant has the burden of proof to establish by the weight of the substantial, reliable
and probative evidence that a causal relationship exists between her claimed total disability for
the period July 22 through September 20, 2013 and the accepted conditions of thoracic and
lumbar sprain.16 The treatment records of her physicians do not provide such rationalized
medical opinion. Therefore, the medical evidence submitted is insufficient to meet appellant’s
burden of proof for the entire period claimed.17 However, the Board finds that appellant is
entitled to wage-loss compensation for attending specific medical appointments for this period.
Dr. Sandknop did not provide a narrative report explaining how appellant’s claimed
disability was causally related to her accepted injury. The record contains duty status reports and
disability notes from Dr. Sandknop for the period June 4 through September 20, 2013. None of
these reports provide a rationalized explanation as to how appellant’s inability to work was
causally related to her accepted lumbar and thoracic sprain.

11

5 U.S.C. § 8103(a).

12

Dorothy J. Bell, 47 ECAB 624, 625 (1996); Zane H. Cassell, 32 ECAB 1537, 1541 (1981).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).
14

See Daniel Hollars, 51 ECAB 355, 356 (2000); Jeffrey R. Davis, 35 ECAB 950, 951 (1984).

15

Id.

16

See supra note 4.

17

See Alfredo Rodriguez, 47 ECAB 437, 442 (1996).

5

In a letter dated July 19, 2013, Dr. Sandknop stated that appellant was “out of work due
to a sprained lumbar injury and cannot work due to lifting.” He noted that she had been off work
since June 4, 2013, when she sprained her back. Dr. Sandknop did not, however, address
specific dates of disability, or explain how appellant’s claimed disability was causally related to
her accepted condition. In an August 22, 2103 work capacity evaluation, he stated that she was
incapable of performing her usual job, but noted that she could work up to four hours per day,
with restrictions of no pushing, pulling, lifting, squatting, kneeling, or climbing. Yet in a duty
status report of the same date, Dr. Sandknop stated that appellant should not return to work for
12 days. In a duty status report of September 20, 2013, he again stated that she should not return
to work. He did not explain or resolve the apparent contradiction between these reports. This
unexplained contradiction diminishes the probative value of Dr. Sandknop’s opinion on
appellant’s disability for the claimed period.
Appellant submitted reports and notes signed by a registered nurse practitioner and a
physical therapist. These documents do not support appellant’s claim because under FECA, the
reports of nonphysicians, including physical therapists and nurses, do not constitute probative
medical evidence unless countersigned by a physician.18 Lacking countersignatures, these
documents do not constitute probative medical evidence.19 Appellant also submitted several
documents that were illegibly signed, such that the author could not be determined.
Consequently, these reports are of no probative value and do not establish her claim for
compensation, as it cannot be discerned whether a physician signed the reports.20
The remaining evidence of record, including diagnostic studies and reports from
Dr. Lankford and Sze, do not provide any opinion as to whether appellant was disabled during
the claimed period. Therefore, appellant has not submitted sufficient evidence to establish her
claim for wage-loss compensation for the entire period July 22 through September 20, 2013.
The Board finds, however, that appellant has submitted sufficient evidence to establish
that she attended specific medical appointments related to the accepted conditions on July 22,
August 2, 22, and September 20, 2013 with Dr. Sandknop; August 9, 2013 with Dr. Sze, which
included an MRI scan; and on August 23, 2013 with Dr. Lankford, which included a physical
examination. Each of these visits related to appellant’s accepted injury of lumbar and thoracic
sprain. As noted, with respect to claimed disability for medical treatment, a claimant may be
paid compensation for wage loss while obtaining medical services and for a reasonable time
spent traveling to and from the medical provider’s location.21 On remand, OWCP shall develop
appellant’s claim to determine if she is entitled to up to four hours of wage loss for these medical
appointments and travel time.

18

See 5 U.S.C. § 8101(2); M.B., Docket No. 12-1695 (issued January 29, 2013) (regarding nurse practitioners);
Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000) (regarding physical therapists).
19

The Board notes that the work capacity evaluation of August 22, 2013 was signed by both a registered nurse
and Dr. Sandknop, and thus constituted probative medical evidence.
20

See Merton J. Sills, 39 ECAB 572, 575 (1988); see also Sheila A. Johnson, 46 ECAB 323, 327 (1994).

21

Supra note 14.

6

CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for wage-loss
compensation for the period July 22 through September 20, 2013. The Board further finds that
OWCP did not sufficiently develop whether appellant is entitled to wage-loss compensation for
attending certain medical appointments during this period.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 12, 2013 is affirmed in part and the case set aside in
part for further development consistent with this decision.
Issued: September 2, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE ARMY, FORT
MCCOY, Sparta, WI, Employer
__________________________________________

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

Docket No. 09-511
Issued: September 4, 2009

Case Submitted on the Record

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

JURISDICTION
On December 12, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 12, 2008 nonmerit decision finding that his request for
reconsideration was untimely filed and failed to show clear evidence of error. The most recent
decision on the merits of the claim was dated July 24, 1996. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board does not have jurisdiction over the merits of this appeal.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request for reconsideration was untimely
filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY
This case has previously been before the Board. The findings of facts and conclusions of
the law from the prior decision are hereby incorporated by reference.1 The relevant facts are
briefly set forth below.
Appellant sustained injury on February 9, 1979 accepted for acute muscle spasm with
C5-6 radiculopathy and a discectomy and fusion at C5, C6-7. On July 13, 1994 the Office
terminated her compensation benefits effective June 18, 1994 due to his refusal to accept a lightduty job. This decision was affirmed by a hearing representative on June 20, 1994. On July 13,
2007 the Board affirmed an August 24, 2005 Office decision, which denied appellant’s request
for reconsideration as it was untimely filed and failed to establish clear evidence of error.2
Subsequent to the Board’s decision, appellant resubmitted documents that had been of
record before the 1994 termination of compensation benefits, including Office documents
regarding his compensation payments, physician’s reports and rehabilitation notes.
By letter dated August 26, 2008, appellant again requested reconsideration. He
contended that Dr. Gay Anderson gave him a poor evaluation, that the Department of Veterans
Affairs found him to be 100 percent disabled, that a physician’s report was forged and that he
experienced chronic pain. Appellant submitted letters from his congressman dated July 15 and
August 1, 2008, to which the Office sent responses. In the August 1, 2008 letter, his
congressman submitted an undated page from a vocational report.
By decision dated September 12, 2008, the Office denied appellant’s request for
reconsideration as it was not timely filed and failed to show clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3 It
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.4 When an application for review is untimely, it
undertakes a limited review to determine whether the application presents clear evidence that the
Office’s final merit decision was in error.5 The Office’s implementing procedures state that the
Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth at section 10.607, if the claimant’s application for review shows clear

1

Docket No. 06-1946 (issued July 13, 2007).

2

Id.

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.607(b); see Gladys Mercado, 52 ECAB 255 (2001).

5

Cresenciano Martinez, 51 ECAB 322 (2000).

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evidence of error. In this regard, it will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office.7
ANALYSIS
The last merit decision in this case was dated July 24, 1996. The date of appellant’s
request for reconsideration was August 26, 2008. The underlying decision terminated appellant’s
compensation benefits because he refused an offer of suitable work. Since the application for
reconsideration was filed more than one year after the last merit decision, it was untimely
pursuant to 20 C.F.R. § 10.607(a).
On appeal, he again requests that the Board review the August 24, 2005 Office decision.
However, the Board has addressed this decision in the prior appeal. Therefore, the issue of
whether the Office properly denied reconsideration in its August 24, 2005 decision is res
judicata and not subject to further consideration.8 The Board also finds that appellant’s
contentions that the Office either lost or hid his file to be without merit. Appellant did not
submit any evidence to support his contentions.
As to the September 12, 2008 Office decision, it denied reconsideration as the request
was not timely filed and found that he failed to establish clear evidence of error. The Board
finds that this denial of reconsideration was proper. Appellant filed an August 26, 2008 request
for reconsideration from the July 24, 1996 Office merit decision. As this was more than one year
following the issuance of the decision, it was untimely filed. Although the request is untimely, it
would be sufficient for a merit review if it showed clear evidence of error on the part of the
Office in the July 24, 1996 decision. However, the Board evidence submitted in support of the
request is new; most of the evidence is dated from prior to the 1994 termination of compensation
benefits. Appellant’s congressman submitted a page from a vocational report. However, the
Board notes that it pertains to an October 18, 1995 vocational report that was of record and
previously considered by the Office. Furthermore, the arguments made by appellant in his
6

20 C.F.R. § 10.607.

7

Alberta Dukes, 56 ECAB 247 (2005).

8

A decision of the Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R.
§ 501.6(d). See also Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

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August 26, 2008 letter were reviewed and rejected by the Office. The evidence does not shift the
weight of evidence in favor of his claim or raise a substantial question as to the correctness of the
Office’s decision. Appellant has not established clear evidence of error on the part of the Office.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request for reconsideration was untimely
filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2008 is affirmed.
Issued: September 4, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE NATIONAL GUARD, Frankfort, KY,
Employer
__________________________________________

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

Docket No. 15-1663
Issued: December 22, 2015

Case Submitted on the Record

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

JURISDICTION
On August 3, 2015 appellant filed a timely appeal from an April 22, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her coffee
creamer was spiked with Clonazepam at work, causing an emotional condition.
FACTUAL HISTORY
On February 19, 2015 appellant, then a 45-year-old Information Technology specialist,
filed an occupational disease claim (Form CA-2) alleging that she experienced psychological
1

5 U.S.C. § 8101 et seq.

illness and stress as a result of a coworker spiking her personal coffee creamer with the drug
Clonazepam. She explained that she came to this realization after a considerable amount of
anxiety, paranoia, sleep deprivation, and stress consumed her daily routine. Appellant first
became aware of her condition on November 27, 2014 and realized that it resulted from her
employment on December 2, 2014. On the back of the claim form, appellant’s supervisor
reported that appellant had not stopped work. She related that on December 19, 2014 appellant
requested that she be physically moved to a different location due to elevated stress and anxiety.
On January 8, 2015 appellant was moved to a different building to alleviate the stress, but she
continued to work with the same coworkers and perform the same work.
In various narrative statements, appellant explained that her coworkers targeted her and
spiked her coffee creamer with the drug Clonazepam without her knowledge. She noted that her
coworkers continued to work in the same location as her. Appellant stated that although she did
not know the exact date that her coffee creamer was spiked with Clonazepam, she believed that it
happened around October 10, 2014 when she brought the creamer home from work. She
continued to use the coffee creamer and began to experience the drug’s side effects of dizziness,
poor coordination, tiredness, trouble concentrating, unsteadiness, trembling, shakiness, and
unsteadiness. Appellant described that on the morning of November 27, 2014, she was refilling
her coffee cup at home for a second cup of coffee when she noticed something yellow in the
bottom of her cup. When she examined it further she realized that it was a pill. Appellant
dumped the rest of the creamer onto a small saucer and found approximately nine Clonazepam
pills in it. She contacted the police. Appellant indicated that she was including a police report
and pictures of the pills.
Appellant reported that she did not have evidence, such as witness statements, to
substantiate when someone put Clonazepam in her coffee creamer, but she had a witness
statement from someone who noticed the symptoms she was experiencing. She explained that
she stored her personal coffee creamer in an unlocked cabinet in her office space and that other
employees had access to where it was stored. Appellant stated that the incident was being
investigated by the Office of Complex Investigations. She noted that although she did not seek
medical treatment on each date that she ingested the Clonazepam, she sought medical treatment
for some of the anxiety and depression she was experiencing as an effect of ingesting the pills.
Appellant submitted a November 27, 2014 police report for second degree wanton
endangerment. Within the report she indicated that the incident occurred at home. Appellant
related that she had felt weird and sluggish for the past several weekends but did not know why.
She had brought home her coffee creamer from work and found several Clonazepam pills in her
creamer. Appellant also included a November 28, 2014 drug monitoring report which revealed
that the drug Clonazepam was present.
In a March 3, 2015 statement, appellant’s husband, reported that on two instances he
witnessed appellant under the influence of the drug Clonazepam. He stated that on
approximately October 21 and November 27, 2014 she was unsteady on her feet, bumping into
things, and acting like someone that had been drinking.
By letter dated March 20, 2015, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual evidence to substantiate

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that she actually experienced the incidents as described and additional medical evidence to
establish that she sustained a diagnosed condition as a result of her employment. OWCP issued
a similar development letter to the employing establishment.
In a March 27, 2015 narrative report, Jennifer E. Townsend, a licensed clinical social
worker, noted that appellant began attending therapy on January 30, 2015 because she was
experiencing anxiety, some depression, sleeplessness, and nightmares since November 27, 2014
when appellant discovered some Clonazepam in her coffee creamer. Appellant reported that she
also experienced physical side effects of dizziness, poor coordination, tiredness, trouble
concentrating, unsteadiness, trembling, shakiness, and unsteady gait. Ms. Townsend related that
appellant still experienced anxiety and stress at work around her coworkers because she did not
know which one of them was responsible for putting the drug in her creamer. She diagnosed
adjustment disorder with mixed anxiety and depressed mood.
On April 2, 2015 Linda Wolverton, an OWCP manager at the employing establishment,
responded to the March 20, 2015 development letter. She asserted that appellant’s claim did not
meet all the requirements for acceptance because appellant did not submit supporting medical
documentation to establish the injury. Ms. Wolverton also contended that the alleged incident
did not occur in the performance of duty, as the date of injury was noted as Thanksgiving Day, a
federal holiday, and appellant was not authorized to work on that date. She pointed out that the
incident also occurred at appellant’s home, not her duty station.
On April 6, 2015 Dr. Terry M. Hagan, a Board-certified psychiatrist, examined appellant.
In a narrative report he related that she had been seeing a social worker since she discovered
Clonazepam in her creamer last Thanksgiving. Appellant believed that the act was done to get
her to test positive on a drug test at work. She reported that she also had trouble sleeping and
had nightmares. Dr. Hagan reviewed appellant’s history and provided findings on examination.
He diagnosed acute stress disorder and work stress. Dr. Hagan opined that appellant’s anxiety
was an activation of a mild generalized anxiety, such that, she now had an acute stress disorder
superimposed upon her generalized anxiety, as a result of the assault at work regarding
Clonazepam in her coffee.
In an April 8, 2015 report, Dr. Hagan, indicated that he read narratives regarding
appellant’s claim and agreed with them. He opined that her anxiety was a direct cause of the
stated work situation.
On April 8, 2015 appellant responded to OWCP’s development letter. She stated that she
did not know when the coffee creamer was spiked, but she discovered the Clonazepam in her
coffee creamer on November 27, 2014. Appellant noted that there were no witnesses to her
coffee creamer being spiked, but there was a pending investigation that may provide a witness.
She described the November 27, 2014 incident where she found the Clonazepam in her coffee
creamer at home. Appellant explained that she did not seek medical treatment on each of the
dates she ingested Clonazepam because she was not aware that she was ingesting it. She noted
that she sought medical treatment for some of the anxiety and depression issues she had
experienced due to spiking her coffee creamer at work. Appellant related that, beginning in the
later part of October 2014, she experienced symptoms of unknowingly ingesting the
Clonazepam, including dizziness, poor coordination, tiredness, trouble concentrating,

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unsteadiness, trembling, shakiness, and unsteady walk. She indicated that she did not have any
prior emotional conditions.
In a decision dated April 22, 2015, OWCP denied appellant’s claim finding that she
failed to establish fact of injury as the evidence was insufficient to support that the “injury and/or
events occurred” as she described.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence2 including that the individual is an employee of the United States within the meaning of
FECA; that the claim was filed within the applicable time limitation; that an injury was sustained
while in the performance of duty as alleged; and that any disability and/or specific condition for
which compensation is claimed are causally related to the employment injury.3 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated on a traumatic injury or an occupational disease.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment.5 There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation.6 In the case of Lillian Cutler,7 the Board explained that
there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. Where an employee experiences emotional stress in carrying
out his or her duties, or has fear and anxiety regarding his or her ability to carry out his or her
duties, and the medical evidence establishes that the disability resulted from his or her 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 resulted from her
emotional reaction to her day-to-day duties. The same result is reached when the emotional
disability resulted from the employee’s emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of the work.8
On the other hand, when a disability results from an employee’s feelings of job insecurity
per se, fear of a reduction-in-force, or frustration from not being permitted to work in a particular
environment or hold a particular position, unhappiness with doing work, or frustration in not
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

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

4

Michael E. Smith, 50 ECAB 313 (1999).

5

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

6

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

7

28 ECAB 125 (1976).

8

Id.; see also Trudy A. Scott, 52 ECAB 309 (2001).

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being given the work desired, such disability falls outside FECA’s coverage because they are
found not to have arisen out of employment.9 The only requirements of employment which will
bring a claim within the scope of coverage under FECA are those that relate to the duties the
employee is hired to perform.10
A claimant has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the condition for which she claims compensation was caused or
adversely affected by the employment factors.11 This burden includes the submission of a
detailed description of the employment factors or conditions which she believes caused or
adversely affected a condition for which compensation is claimed and a rationalized medical
opinion relating the claimed condition to compensable employment factors.12
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 work 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
compensable factors of employment and may not be considered.13 If a claimant does implicate a
factor of employment, OWCP should then consider whether the evidence of record substantiates
that factor. As a rule, allegations alone by a claimant are insufficient to establish a factual basis
for an emotional condition claim. The claim must be supported by probative evidence.14
ANALYSIS
Appellant has alleged that she experienced extreme stress, anxiety attacks, and other
physical ailments as a result of unknowingly ingesting coffee creamer that was spiked with
Clonazepam pills by a coworker. She has not attributed her emotional condition to the
performance of her regular work duties or to any special work requirement arising from her
employment duties under Cutler.15
OWCP denied appellant’s claim finding that she failed to establish fact of injury. As a
preliminary matter, the Board must review whether the alleged incident is a covered employment
factor under FECA.16
9

William E. Seare, 47 ECAB 663 (1996).

10

See Anthony A. Zarcone, 44 ECAB 751 (1993).

11

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

12

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

13

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

14

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

15

Supra note 7.

16

See P.W., Docket No. 15-605 (issued June 1, 2015).

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Appellant has attributed her emotional condition to someone targeting her at her
workplace, so that she might test positive on a drug test, ending her career. Specifically, she
asserts that someone spiked her personal coffee creamer with Clonazepam pills. The Board has
found that for harassment to give rise to a compensable disability, there must be evidence which
establishes that the acts alleged or implicated by the employee did, in fact, occur.17 A claimant
must establish a factual basis for her allegations with probative and reliable evidence.18
In this case, appellant has acknowledged that she does not know which coworker spiked
her coffee creamer or exactly when the spiking would have occurred. She has indicated that she
brought coffee creamer home from work around October 10, 2014. Appellant has explained that
she first found the pills in her coffee cup at home, on Thanksgiving Day. She has not explained
why she found the pills in her coffee at home on Thanksgiving, or if the creamer she stored at
work in an unlocked cabinet was the same spiked creamer. When an employee claims that he or
she sustained an injury in the performance of duty, he or she must submit sufficient evidence to
establish that he or she experienced a specific event, incident or exposure occurring at the time,
place, and in the manner alleged.19 The Board finds that appellant did not submit probative
evidence that her coffee creamer was spiked with Clonazepam at the time, place, and in the
manner alleged. Thus, appellant has failed to establish a compensable factor of employment.
On appeal, appellant argues that she was deliberately drugged at work by an unknown
assailant and experienced severe trauma due to the situation. She notes that she provided
evidence that the drug was in her system. As noted above, however, appellant has not
established a factual basis to corroborate her allegation that a coworker spiked her coffee
creamer at work. For this reason, she has failed to establish her emotional condition claim.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her coffee
creamer was spiked with Clonazepam at work causing an emotional condition.

17

K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 5.

18

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

19

See M.B., Docket No. 13-1294 (issued September 20, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the April 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2015
Washington, DC

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

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

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

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