United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blaine, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1199
Issued: March 9, 2017

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 May 19, 2016 appellant, through counsel, filed a timely appeal from a March 30,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this claim.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board has jurisdiction over OWCP’s March 7, 2016 termination of medical benefits decision. However, as
counsel has not appealed this decision, it will not be reviewed on appeal.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability
commencing December 13, 2014, causally related to a February 22, 2012 employment injury.
FACTUAL HISTORY
On February 23, 2012 appellant, then a 49-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she had injured her back on February 22, 2012 when she
crawled into an over-the-road container to retrieve a package that was at the bottom. She
stopped work on February 24, 2012. OWCP assigned the claim File No. xxxxxx003 and
accepted it for closed dislocation lumbar vertebra and closed dislocation thoracic vertebra.
Appellant accepted a modified job on March 5, 2012 and worked full time with restrictions.
OWCP paid benefits for wage loss due to medical care or when modified work was unavailable.
Under File No. xxxxxx699, date of injury November 13, 2012, appellant reported that she
had injured her left knee, both arms, both shoulders, and her upper back when she fell off a wet
porch while delivering a package. By decision dated February 9, 2015, the Board modified
OWCP’s July 21, 2014 decision to reflect that the November 13, 2012 incident had occurred at
the time, place, and in the manner alleged, but denied the claim as she had not established that
she had sustained an injury on November 13, 2012 in the performance of duty.4
Under File No. xxxxxx491, appellant claimed that she had injured her back on
December 7, 2013 when she fell while delivering a package. She stopped work on
December 14, 2013. OWCP accepted the claim for lumbar sprain, resolved and contusions of
multiple sites, resolved. File Nos. xxxxxx699 and xxxxxx491 have been administratively
combined with the present case, File No. xxxxxx003, with File No. xxxxxx003 serving as the
master file.
Relevant medical evidence of record shows that Dr. Frederick John Gunningham, Boardcertified in family medicine, examined appellant on December 10, 2013, three days after her
December 7, 2013 work injury. In his December 10, 2013 report, he noted that she was working
at light-duty capacity and opined that she could continue to work light duty with her mechanical
low back pain. Dr. Gunningham noted that appellant’s lumbar strain had improved and that she
did not need surgery for her bilateral sciatica.
On December 15, 2013 appellant was treated at the emergency room for back pain that
began eight days prior. Her work duties for the employment establishment were noted. X-rays
showed no acute finding, but degenerative changes were noted. Appellant was advised not to
work for two days or until she felt better.
In a December 19, 2013 report, Dr. Gunningham reported that appellant had collapsed at
work last Friday and that she had gone to the emergency room on Sunday. He noted that she had
experienced episodes of urinary incontinence. Dr. Gunningham also noted that appellant

4

Docket No. 14-1816 (issued February 9, 2015).

2

reported having been asked to do more than her recommended limits during the Christmas rush,
and consequently she had a setback. He diagnosed bilateral sciatica and took her off work.
In a January 7, 2014 report, Dr. Gunningham noted that appellant requested that he open
a new claim for injuries sustained on December 7, 2013. He diagnosed new conditions of left
shoulder strain and right foot strain. Dr. Gunningham indicated that appellant’s lumbar strain
had deteriorated and opined that the December 7, 2013 employment injury had exacerbated her
condition.
In a January 27, 2014 report, Dr. Gunningham noted that appellant’s chronic pain
syndrome was evolving into failed back syndrome. He continued to treat her for chronic pain.
In a November 8, 2014 report, Dr. Aleksandar Curcin, a Board-certified orthopedic
surgeon and OWCP referral physician, noted appellant’s December 7, 2013 history of injury and
reviewed the medical record. He opined that, taking her report of the injury on a factual basis,
the December 7, 2013 work injury resulted in lumbar sprain/strain and multiple contusions -resolved. Dr. Gunningham noted that there appeared to be a discrepancy in that the emergency
room records from December 15, 2013 made no mention of the reported trauma. He found that
there were no objective findings of the effects of the work injuries and opined that appellant was
not restricted from work based on her work injuries.
In a March 14, 2015 report, Dr. Gunningham noted that the December 7, 2013 fall was
not mentioned in his December 10, 2013 report because appellant had not mentioned it to him.
He noted that she went to the emergency room on December 15, 2013 and reported the injury
then. On December 19, 2013 appellant had reported to Dr. Gunningham that she had collapsed
at work on December 7, 2013. Dr. Gunningham opined that her condition had progressed from a
strain to fibromyalgia. He also opined that appellant had residuals of her work injuries because
of her chronic pain.
On March 25, 2015 appellant filed a claim for wage-loss compensation (Form CA-7)
commencing December 13, 2014. As previously noted, prior to her work injury of December 7,
2013, she was working full time with restrictions.
In a March 27, 2015 letter, OWCP requested that appellant submit evidence to support
that her claim for compensation, beginning December 13, 2014 and continuing, was related to
her February 22, 2012 work injury and afforded her 30 days to submit such evidence. It
specifically requested medical evidence from her physician establishing that her inability to work
was related to the accepted conditions in this claim. OWCP noted that it had previously denied
appellant’s claims for compensation for the period of May 28 to October 31, 2014, in part,
because she had sustained an injury on December 7, 2013 (File No. xxxxxx491) that was
accepted for a resolved lumbar sprain and that she had not appealed that decision or filed any
Form CA-7’s under that claim. It further noted that the Board had affirmed the denial of her
claim for a November 12, 2012 injury under File No. xxxxxx699. OWCP lastly noted that
appellant had recently been referred for a second opinion examination to determine if there were
any residuals present from her work injury of February 22, 2012.

3

OWCP later received several reports from Dr. Gunningham dated October 13 and
December 15, 2014, and March 24, 2015, which diagnosed and advised on the status of
appellant’s fibromyalgia condition and chronic pain syndrome.
In an April 21, 2015 report, Dr. William Dinenberg, a Board-certified orthopedic
surgeon, discussed appellant’s history, the medical records, the statement of accepted facts, and
presented examination findings. He concurred that the lumbar sprain had resolved, although
there were objective findings of preexisting degenerative disc disease and facet disease.
Dr. Dinenberg opined that the residuals presented on examination were not causally related to
the February 22, 2012 work injury, but were most likely due to her fibromyalgia. However, he
indicated that fibromyalgia was outside of his medical expertise. Dr. Dinenberg advised that
appellant had reached maximum medical improvement for the conditions accepted in her claim.
As Dr. Dinenberg indicated that, fibromyalgia was outside of his medial expertise,
OWCP referred appellant’s medical file to its medical adviser to determine if a relationship
existed between the accepted conditions and the diagnosed fibromyalgia. In a May 12, 2016
report, OWCP’s medical adviser opined that, based on the mechanism of injury and the now
resolved lumbar sprain, it was highly unlikely that the accepted conditions resulted in
fibromyalgia or chronic pain syndrome.
By decision dated May 18, 2015, OWCP denied appellant’s claim for wage-loss
compensation for the period commencing December 13, 2014. It found that the medical
evidence of record did not establish that she was disabled as a result of her accepted work-related
medical conditions and that she had an intervening work injury on December 7, 2013.
On May 27, 2015 counsel requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held January 14, 2016. Appellant testified
that she last worked for the employing establishment on December 13, 2013, one week after she
fell. Prior to the December 7, 2013 employment injury, she had been working light duty since
the February 22, 2012 employment injury. Appellant stated that, because of her work injuries,
she had developed fibromyalgia and herniated discs.
Progress reports from Dr. Gunningham were received, in which he indicated that he
continued to treat appellant for chronic pain syndrome. In a February 23, 2016 report, he opined
that her chronic pain syndrome resulted from the industrial injuries. Dr. Gunningham
additionally provided that he was not aware of any physicians who could prove the origins of a
chronic pain syndrome with the available objective tests.
By decision dated March 7, 2016, OWCP terminated appellant’s medical benefits
effective the same date.5 It found that the residuals of her accepted work-related medical
conditions resulting from the February 22, 2012 employment injury had ceased.
By decision dated March 30, 2016, an OWCP hearing representative affirmed the denial
of appellant’s claim for wage-loss compensation for the period commencing December 13, 2014.
She found that the medical evidence of record did not show any objective findings related to the
5

See supra note 3.

4

lumbar strains and there was no rationalized medical opinion to establish that, beginning in
December 2014, appellant was unable to work her modified position due to the effects of her
work injuries.
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.6 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.7 Whether a particular injury 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.8
Under FECA the term disability means 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 an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wageearning capacity.11 When, however, the medical evidence establishes that the residuals or
sequelae of an employment injury are such that, from a medical standpoint, they prevent the
employee from continuing in his or her employment, he or she is entitled to compensation for
any loss of wages.
The claimant must submit medical evidence showing that the condition claimed is
disabling.12 The evidence submitted must be reliable, probative, and substantial.13
The physician’s opinion must be based on the facts of the case and the complete medical
background of the employee, must be one of reasonable medical certainty and must include
objective findings in support of its conclusions.14 Subjective complaints of pain are not
sufficient, in and of themselves, to support payment of continuing compensation.15 Likewise,
6

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

7

See Amelia S. Jefferson, id.

8

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

9

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

10

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

11

Merle J. Marceau, 53 ECAB 197 (2001).

12

20 C.F.R. § 10.115(f).

13

Id. at § 10.115.

14

Id. at § 10.501(a)(2).

15

Id.

5

medical limitations based solely on the fear of a possible future injury are also insufficient to
support payment of continuing compensation.16
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 disability and
entitlement to compensation.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she was
disabled from work for the period commencing December 13, 2014 causally related to the
February 22, 2012 employment injury.
OWCP accepted that on February 22, 2012 appellant sustained closed dislocation lumbar
vertebra and closed dislocation thoracic vertebra. The condition of lumbar sprain was
subsequently added. Appellant accepted a modified job on March 5, 2012 and worked full time
with restrictions until she sustained an injury on December 7, 2013, which OWCP accepted
under file number xxxxxx491 for a resolved lumbar strain. OWCP also denied wage-loss
compensation for the period May 28 to October 31, 2014. Appellant also claimed wage-loss
compensation beginning December 13, 2014 as a result of her February 22, 2012 work injury,
which OWCP denied.18
In support of her claim for wage-loss compensation beginning December 13, 2014,
appellant submitted medical evidence from Dr. Gunningham, who opined that the work injuries
led to chronic pain. However, Dr. Gunningham has not provided a well-rationalized medical
report to establish that beginning December 13, 2014 she was unable to work her modified
position due to the effects of her work injuries.19 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.20
The record further reflects that Dr. Dinenberg, an OWCP-referral physician, found in his
April 21, 2015 report that the lumbar sprain had resolved, although there were objective findings
of preexisting degenerative disc disease and facet disease. He opined that the residuals presented
on examination were not causally related to the accepted February 22, 2012 work injury, but
were most likely due to appellant’s fibromyalgia. As the fibromyalgia condition was outside of
16

Id.

17

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

18

The Board notes that, in the instant case, appellant stopped work one week after the December 7, 2013
employment injury, which OWCP accepted under File No. xxxxxx491, for a resolved lumbar strain. The record
indicates that appellant has not appealed the March 7, 2016 termination decision or filed any Form CA-7 under
claims for compensation, File No. xxxxxx491. Additionally, the Board upheld the denial of that claim.
19

See Vanessa Young, 55 ECAB 575 (2004).

20

See supra note 17.

6

Dr. Dinenberg’s medical expertise, an OWCP medical adviser reviewed the record and opined
that, in a May 12, 2015 report, it was highly unlikely that the accepted conditions had resulted in
fibromyalgia or chronic pain syndrome based on the mechanism of injury and her now resolved
lumbar sprain.
Appellant failed to submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, established that she was totally disabled from
work beginning December 13, 2014, and continuing due to residuals of her accepted injury. As
the medical evidence of record does not establish that she was disabled as a result of her
accepted work-related medical conditions for the period beginning December 13, 2014 and
continuing, the Board will affirm the denial of the claim for compensation.
On appeal, counsel argues that OWCP’s decision is contrary to fact and law. However,
as discussed above, the medical evidence of record does not support appellant’s disability claim.
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 failed to meet her burden of proof to establish total
disability commencing December 13, 2014, causally related to her February 22, 2012
employment injury.

7

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2017
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Belmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1351
Issued: March 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On June 4, 2019 appellant filed a timely appeal from December 27, 2018 and April 19,
2019 merit decisions 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 while in the performance of duty, as alleged.
FACTUAL HISTORY
On November 16, 2018 appellant, then a 31-year-old retail sales clerk, filed a traumatic
injury claim (Form CA-1) alleging that on November 7, 2018 she developed stress and anxiety as
a result of an incident involving a coworker while in the performance of duty. On the reverse side
1

5 U.S.C. § 8101 et seq.

of the claim form, appellant’s supervisor, S.S., controverted the claim indicating that both
employees displayed unacceptable behavior and that all the statements she had received were
different. No additional evidence was submitted.
In a development letter dated November 26, 2018, OWCP advised appellant of the factual
and medical evidence necessary to establish her claim and attached a questionnaire for her
completion. In a separate development letter of even date, it requested that the employing
establishment provide comments regarding her claim, a copy of her position description, and
witness statements. OWCP afforded both parties 30 days to submit the necessary evidence.
In a November 7, 2018 statement, received by OWCP on November 27, 2018, appellant
recounted that, on November 7, 2018, she went on a break and when she returned A.R., the lead
clerk, was sitting in her spot at the window. She noted that normally A.R. would move from her
spot when she returned from a break. However, this time A.R. pointed to an open spot that
belonged to R.D., a coworker, and told appellant to sit there. In response, appellant informed A.R.
that she was sitting in her spot and asked why she did not sit in R.D.’s spot as he was on a lunch
break. A.R. repeated that R.D.’s spot was open. Appellant then unlocked her drawer, grabbed her
things, and moved to R.D.’s spot where she closed out her day. She went into the back where she
requested that T.C., a coworker, count her box. Appellant claimed that A.R. came into the back
with a balled up fist and screamed shut up at her using profane language. She responded in kind
by telling her to shut up. Appellant indicated that A.R. continued to scream at her in the same
manner. R.D. told her to watch her mouth. In response, A.R. balled up her fist, lunged at him,
and used profane language for approximately five minutes. Appellant closed out her box, walked
away, and clocked out. When she walked outside, A.R. was still screaming in a parking lot.
Appellant went back inside the building to retrieve her cup and as she walked back out of the
building A.R. was walking inside. She contended that A.R. provoked violence by coming at her
in a threatening manner, which created a hostile work environment.
In a November 8, 2018 Report of Hazard, Unsafe Condition or Practice (PS Form 1767)
and in the narrative, appellant reiterated the history of the claimed November 7, 2018 incident.
In a November 8, 2018 statement, R.D. indicated that there was an eruption of yelling and
cursing by A.R. on that day. He noted that A.R. approached him and other coworkers with a
profanity-laced rant. R.D. alleged that her behavior was very threatening and unacceptable.
In another statement dated November 8, 2018, T.C., a coworker, indicated that he heard
appellant and A.R. screaming back and forth at each other. He stated that he did not remember
what they said to one another.
A.R., in an undated statement, recounted that she told appellant to sit in an open seat at the
middle window when appellant returned to work. She noted that appellant became mad, closed
out her drawer, and turned in her money for the day. A.R. claimed that she barked at her, called
her names, and told their coworkers something about her. She asked appellant to be quiet.
Appellant responded by asking who are you talking to and A.R. replied that she was talking to her
and walked away. A.R. noted that she had previously been through the same situation with
appellant. She became frustrated and walked to the parking lot where she called her mother and
supervisor. A.R. subsequently calmed down and returned to work.

2

In a letter dated November 30, 2018, the employing establishment submitted an assault and
threat specialty report prepared by B.W., an investigating inspector from the U.S. Postal Service
Inspection Service. B.W. determined that, based on his review of appellant’s statement, witness
statements, and A.R.’s statement and November 30, 2018 interview, A.R.’s behavior on
November 7, 2018 constituted a noncredible threat. He noted that her account of the November 7,
2018 events presented during her interview mirrored her written statement. B.W. noted that A.R.
added that she had not felt respected by her coworkers due to her young age and being from
Delaware rather than New Jersey. He also noted that she explained to him that she used derogatory
language because she was angry about the situation. A.R. also explained that she balled up her
fists in anger and not as a threat. She denied raising her hands or lunging at anyone with her
shoulder. A.R. acknowledged that getting angry was a mistake and maintained that she would not
do it again. B.W. indicated that S.S. issued a letter of warning to both appellant and A.R. regarding
their conduct with regard the claimed incident.
In a December 13, 2018 letter, S.S. challenged appellant’s claim based on an investigation
of the circumstances surrounding the claim. She noted that on November 7, 2018 at the Bellmawr
retail store, appellant was involved in a verbal altercation with A.R. S.S. related that both
employees’ behavior was unacceptable as the employing establishment had zero tolerance for such
behavior in the workplace. She indicated that before the altercation took place, appellant told
another coworker on that day that she was leaving her shift early because she was not feeling well
and that A.R. wanted to play games. S.S. ended her day and left the building, but moments later
came back inside the building to retrieve her tea cup. She related that the altercation between
appellant and A.R. occurred at that time. S.S. noted appellant’s allegation that she felt threatened,
but maintained that statements from all employees/witnesses had conflicting results. She
concluded that appellant had failed to establish fact of injury and to submit any medical evidence
to support her claim.
In a December 24, 2018 statement, appellant refuted S.S.’s version of the November 7,
2018 incident. She contended that A.R. came at her when she was cashing out while on the clock
and not when she returned to the building. Appellant also contended that she should not be charged
with displaying the same behavior as A.R. since she walked away from the incident. She noted
that she sent text messages indicating that A.R. lunged at R.D. on November 7, 2018.
OWCP received medical evidence.
By decision dated December 27, 2018, OWCP accepted that the November 7, 2018
employment incident constituted a compensable factor of employment, but denied appellant’s
claim, finding the medical evidence of record insufficient to establish that the compensable
employment factor caused or aggravated her diagnosed emotional condition. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
OWCP thereafter received additional medical evidence.
On January 11, 2019 appellant requested reconsideration of the December 27, 2018
decision. In an accompanying December 22, 2018 statement and January 7, 2019 letter, she
reiterated her account of what occurred on November 7, 2018, denial of S.S.’s account of the
incident, and that her text messages showed that A.R. lunged at R.D.

3

Appellant provided a screenshot of text messages between herself and R.D. during the
period March 21 through November 7, 2018. In the November 7, 2018 text messages, she asked
R.D. whether “she” had lunged at him. R.D. responded that it was more of a menacing approach.
OWCP continued to receive medical evidence.
In a February 8, 2019 letter, S.S. again challenged appellant’s claim, reiterating that she
had not established a factual basis for her claim and failed to submit medical evidence to establish
her claim.
By decision dated April 19, 2019, OWCP modified the December 27, 2018 decision
finding that the accepted November 7, 2018 incident was not a compensable employment factor.
Therefore, the denial of the claim was affirmed.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.3 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.4
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from a claimant’s performance of his or her regular duties,
these could constitute employment factors.5 However, for harassment to give rise to a
compensable disability under FECA there must be evidence that harassment did, in fact, occur.

2

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
3

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
4

Cutler, id.

5
See B.S., Docket No. 19-0378 (issued July 10, 2019); M.R., Docket No. 18-0304 (issued November 13, 2018);
David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

4

Mere perceptions of harassment are not compensable under FECA.6 Additionally, verbal
altercations and difficult relationships with supervisors, when sufficiently detailed by the claimant
and supported by the record, may constitute factors of employment. This does not imply, however,
that every statement uttered in the workplace will give rise to coverage under FECA.7
An employee’s emotional reaction to administrative or personnel matters generally falls
outside of FECA’s scope.8 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.9 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor.10 Harassment and discrimination by
supervisors and coworkers, if established as occurring and arising from the performance of work
duties, can constitute a compensable employment factor.11 A claimant, however, must substantiate
allegations of harassment and discrimination with probative and reliable evidence.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition while in the performance of duty, as alleged.
The Board notes that appellant’s allegations do not pertain to the performance of her
regular or specially assigned work duties as a retail sales clerk under Cutler.13 Rather, she has
alleged verbal abuse and threat of physical harm by a coworker, and error and abuse on the part of
her supervisor.
Appellant attributed her emotional condition to A.R. allegedly screaming, using profanity,
balling up her fist, and lunging at her on November 7, 2018. She contended that when she returned
from a break, A.R. was sitting in her seat at the window. Appellant related that she refused to get
up from the seat and told her to move to an open spot at the window belonging to their coworker,
R.D. She moved to R.D.’s spot where she unlocked her drawer, grabbed her things, closed out her
day, and went into the back of the window area where she asked T.C. to count her box. Appellant
6

A.E., Docket No. 18-1587 (issued March 13, 2019); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

7

Y.B., Docket No. 16-0193 (issued July 23, 2018); Marguerite J. Toland, 52 ECAB 294 (2001).

8

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB
566 (1991).
9

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005); McEuen, id.

10

Id.

11

D.W., Docket No. 19-0449 (issued September 24, 2019); E.K., Docket No. 17-0246 (issued April 23, 2018); T.G.,
58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).
12

D.W., id.; E.K., id.; C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

13

Supra note 3.

5

asserted that A.R. came into the back with her hand balled into a fist and used profanity as she
screamed shut up. While the Board has recognized the compensability of physical threats or verbal
abuse in certain circumstances, this does not imply that every statement uttered in the workplace
will give rise to coverage under FECA.14
The Board finds that the factual evidence of record fails to support appellant’s allegations
of verbal abuse and physical threat. Appellant submitted a November 8, 2018 witness statement
from R.D. who related that A.R. yelled and cursed at him and other coworkers in a threatening and
unacceptable manner on November 8, 2018. The Board notes that the incident was accepted as
having occurred on November 7, 2018. Further, R.D. did not provide a detailed description of
actions that could be considered verbal abuse or a threat of physical assault by A.R. He did not
indicate that A.R. yelled and cursed at appellant. Furthermore, R.D. did identify the nature of the
incident that led to A.R.’s behavior. Similarly, T.C., in a November 8, 2018 statement, related that
he heard appellant and A.R. screaming at each other, but he did not remember what they said to
each other and, thus, did not have enough information to identify the nature of their argument.15
Appellant submitted screen shots of text messages between her and R.D., and contended that this
evidence established that A.R. lunged at her and R.D. However, in November 7, 2018 text
messages, R.D. informed appellant that in fact A.R. did not lunge at him. Rather, he described her
behavior as a menacing approach.
In an undated statement, A.R. acknowledged that she used profanity towards appellant
during the November 7, 2018 incident. However, she denied physically threatening her or anyone
else with a balled fist, raised hands, or a shoulder lunge. A.R. explained that she balled her hand
into a fist out of anger and feeling disrespected by her coworkers, and not as a threat. B.W.’s
November 30, 2018 investigative report found that A.R.’s behavior was a noncredible threat.
Based on the evidence of record, the Board finds that appellant has not established, with
corroborating evidence, that she was verbally abused and physically threatened on November 7,
2018 by A.R.16
Appellant has also alleged that S.S. erred in issuing a letter of warning for unacceptable
behavior demonstrated on November 7, 2018. Although the handling of disciplinary actions and
evaluations are generally related to the employment, they are administrative functions of the
employing establishment, and not duties of the employee.17 Appellant did not submit evidence
that S.S. erred or acted abusively in handling this administrative matter.18 Although S.S., in a
December 13, 2018 letter, did not accurately indicate when the incident occurred on November 7,
2018, she explained that the employing establishment had a zero tolerance policy for the type of
14

D.W., supra note 11; E.K., supra note 11; Charles D. Edwards, 55 ECAB 258 (2004).

15

E.K., supra note 11.

16

See supra note 11.

17

W.F., Docket No. 18-1526 (issued November 26, 2019); E.M., Docket No. 19-0156 (issued May 23, 2019); B.Y.,
Docket No. 17-1822 (issued January 18, 2019); C.T., Docket No. 08-2160 (issued May 7, 2009).
18

W.F., id.; L.H., Docket No. 17-1295 (issued November 22, 2017).

6

behavior demonstrated by appellant and A.R. who also received a letter of warning. For these
reasons, the Board finds that appellant has not met her burden of proof to establish a compensable
employment factor.
As the Board finds that appellant has not established a compensable employment factor, it
is not necessary to consider the medical evidence of record.19
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 while in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2020
Washington, DC
Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

19

See R.B., Docket No. 19-0434 (issued November 22, 2019); B.O., Docket No. 17-1986 (issued January 18, 2019)
(finding that it is not necessary to consider the medical evidence of record if a claimant has not established any
compensable employment factors). See also Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1053
Issued: March 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 27, 2018 appellant filed a timely appeal from December 27, 2017 and April 16,
2018 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
three percent permanent impairment of the right lower extremity and five percent permanent
impairment of the left lower extremity, for which she previously received schedule award
1
2

5 U.S.C. § 8101 et seq.

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

compensation; and (2) whether appellant has met her burden of proof to establish entitlement to
wage-loss compensation for 3.63 hours on October 31, 2017 for time lost to obtain medical
treatment causally related to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference.4 The relevant facts are as
follows.
On July 24, 2009 appellant, then a 48-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained knee strain, lumbar strain, and other lower extremity
conditions as a result of factors of her federal employment. OWCP accepted her claim for right
and left knee chondromalacia of the lateral tibial plateau, right and left knee discoid of the lateral
meniscus, a left knee lateral meniscal tear, bilateral plantar fasciitis, bilateral ankle strain, foot
strain, and lumbar strain.
Appellant accepted a modified-employment position with the employing establishment on
May 11, 2010.5 OWCP paid her intermittent wage-loss compensation benefits on the
supplemental rolls commencing April 6, 2011. Appellant underwent an OWCP-authorized left
plantar fascia release on May 25, 2012 and OWCP paid her wage-loss compensation benefits on
the periodic rolls as of July 29, 2012. On June 6, 2013 she underwent an OWCP-authorized left
knee arthroscopy with partial lateral meniscectomy and debridement.
On April 7, 2016 appellant filed a schedule award claim (Form CA-7). With her request,
she submitted a February 26, 2016 report from Dr. Charles Xeller, a Board-certified orthopedic
surgeon. Dr. Xeller reviewed appellant’s history of injury and performed a physical examination.
He noted normal range of motion (ROM) of the left knee with slight crepitation, pain over the
lateral joint line, no instability, distal circulation, and no neurological deficits. Dr. Xeller
diagnosed a left medial meniscus tear and chondromalacia of the left patella. Utilizing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),6 he identified the class of diagnosis (CDX), in Table 16-3,7 as a Class 1 meniscal
injury, which yielded a default value of two percent. Dr. Xeller assigned a functional history grade
modifier (GMFH) of 1, physical examination (GMPE) of 1; and clinical studies (GMCS) of 1, to
3

Docket No. 16-1814 (issued April 6, 2017).

4

By decision dated July 14, 2016, OWCP determined that appellant’s actual earnings as a customer care agent
commenced on January 11, 2016 and fairly and reasonably represented her wage-earning capacity. Because the wages
appellant earned as a customer care agent equaled the adjusted wages of her date-of-injury position, OWCP found that
she had no loss of wage-earning capacity. On September 12, 2016 appellant appealed the July 14, 2016 decision to
the Board.
5

On January 6, 2016 appellant accepted a position as a customer care agent at the employing establishment,
effective January 9, 2016. She began work in this position on January 11, 2016.
6

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

7

Id. at 509.

2

find no change from the default value of two percent. He found that appellant had reached
maximum medical improvement (MMI) on December 1, 2015 and had two percent permanent
impairment of the left lower extremity.
OWCP referred the medical evidence, a statement of accepted facts (SOAF), and the case
file to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a district medical
adviser (DMA). In an April 18, 2016 report, Dr. Harris requested that additional information be
obtained from Dr. Xeller documenting appellant’s residual issues involving her feet and ankles, as
well as results of physical examination and an impairment rating.
On September 12, 2016 Dr. Xeller advised that appellant’s bilateral foot condition was not
yet “permanent and stationary.”
In a September 30, 2016 report, the DMA opined that appellant had reached MMI,
regarding her left lower extremity conditions, on February 26, 2016 the date of the examination
by Dr. Xeller. He concurred with Dr. Xeller’s finding of two percent permanent impairment of
the left lower extremity according to Table 16-38 based upon her having undergone a partial lateral
meniscectomy. The DMA indicated that appellant had no permanent impairment of the right lower
extremity and noted that she had not reached MMI following her bilateral plantar fascia surgery.
By decision dated October 17, 2016, OWCP granted appellant a schedule award for two
percent permanent impairment of the left lower extremity. The award covered a period of 5.76
weeks from August 25 through October 4, 2016. OWCP noted that, because appellant had been
receiving wage-loss compensation through August 24, 2016, the date of the schedule award was
administratively changed to August 25, 2016.
In a report dated July 12, 2017, Dr. Domenic Signorelli, a podiatrist specializing in
orthopedic surgery, reviewed appellant’s history of injury and performed a physical examination.
He noted difficulty with prolonged ambulation, squatting, crouching, toe walking, and toe standing
and found normal ROM of the feet and ankles. Dr. Signorelli observed significant pes planus
deformity of the feet and issues regarding bilateral tarsal tunnel syndrome, with radiating pain and
a positive Tinel’s sign. He further noted palpatory tenderness and swelling of the bilateral feet and
ankles. Dr. Signorelli diagnosed sprain/strain of the feet, ankles, and lumbar region; bilateral
plantar fibromatosis; bilateral chondromalacia; lumbar disc displacement; and tarsal tunnel
syndrome.
Utilizing Table 16-29, Dr. Signorelli identified the CDX as Class 1, for the diagnosis of
bilateral plantar fibromatosis, based on appellant’s palpatory and/or radiographic findings, which
yielded a default impairment value of one percent. He applied a GMFH of two due to her pain
with ambulation without orthotics and difficulty with weight bearing, a GMPE of two for findings
of palpatory tenderness and swelling of the feet, and a GMCS of one for mild changes on diagnostic

8

Id.

9

Id. at 501.

3

studies. Dr. Signorelli utilized the net adjustment formula to find a grade E or two percent
permanent impairment of each lower extremity due to appellant’s bilateral foot condition.
For the bilateral ankles, Dr. Signorelli identified the applicable diagnosis as sprain/strain
for a CDX of 1, according to Table 16-2,10 which yielded a default value of one percent. He
applied a GMFH of one due to appellant’s difficulty with ambulation without orthotics and daily
activity limitations due to bilateral ankle pain. Dr. Signorelli assigned a GMPE of one due to
palpatory tenderness and swelling of the ankles and a GMCS of one due to mild pathologies on
diagnostic studies, including mild effusion of the bilateral ankle joints as demonstrated by
magnetic resonance imaging scan. He applied the net adjustment formula to find no change from
the default value of one percent permanent impairment of each lower extremity due to appellant’s
ankle condition.
On August 25, 2017 appellant filed a claim for an increased schedule award (Form CA-7).
In a letter dated September 13, 2017, OWCP requested that Dr. Signorelli provide a report
that, specified the date of MMI, the diagnosis upon which the impairment was based, a detailed
description of permanent impairment of the same member preexisting the accepted injury, and a
final rating of permanent impairment.11 It noted that Dr. Signorelli had not provided combined
totals taking into account the previous two percent awarded for the left lower extremity due to the
knee.
In a responsive letter dated September 26, 2017, Dr. Signorelli noted that appellant had
reached MMI on March 9, 2017. He advised that knee complaints were outside of his expertise.
OWCP referred the medical evidence, a SOAF and the case file to the DMA for review.
In an October 20, 2017 report, the DMA concurred with Dr. Signorelli’s finding of two
percent permanent impairment of each lower extremity due to his bilateral foot condition and one
percent permanent impairment of each lower extremity due to his bilateral ankle condition, which
he combined to find three percent permanent impairment of each lower extremity.
For the left knee, referencing Table 16-3,12 the DMA noted a diagnosis of residual
problems status post arthroscopic surgery including saucerization of the lateral meniscus, resulting
in two percent permanent impairment of the left lower extremity due to these knee conditions.13
Combining this value with the three percent left lower extremity impairment due to appellant’s
feet and ankle conditions, he found five percent left lower extremity impairment.

10

Id.

11

This letter was inadvertently addressed to “Dr. Brown.”

12

Supra note 7.

13

Dr. Harris noted that he had used the diagnosis-based impairment (DBI) method for calculating appellant’s
percentage of permanent impairment for the feet, ankles, and left knee, as the applicable diagnoses did not have an
asterisk next to them in the DBI grid indicating that they could be calculated by the ROM method.

4

By decision dated December 27, 2017, OWCP granted appellant a schedule award for three
percent impairment of the right lower extremity and an additional three percent impairment of the
left lower extremity, for a total five percent permanent impairment of the left lower extremity. The
award covered a period of 17.28 weeks from August 18 through December 16, 2017.14
On March 29, 2018 appellant filed a wage-loss compensation claim (Form CA-7) for
intermittent leave without pay (LWOP) for the period October 31, 2017 through March 13, 2018.
She noted office visits with her physicians on October 31, 2017; December 26, 2017, January 11
and 23, 2018, and March 7 and 13, 2018. Appellant claimed 3.63 hours of LWOP for
October 31, 2017.
By decision dated April 16, 2018, OWCP denied appellant’s wage-loss compensation
claim for intermittent LWOP due to time lost from work to obtain medical care for 3.63 hours on
October 31, 2017 finding that employees could not concurrently receive schedule award
compensation and wage-loss compensation for disability for work.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA15 and its implementing federal regulations16 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member, function
or organ shall be determined. The method used in making such a determination is a matter which
rests in the discretion of OWCP. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to all
claimants. OWCP evaluates the degree of permanent impairment according to the standards set
forth in the specified edition of the A.M.A., Guides, published in 2009.17 The Board has approved
the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use
of a member of the body for schedule award purposes.18
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health

14
OWCP noted that schedule award compensation was payable consecutively, but not concurrently with an award
of wage-loss compensation for the same injury, and that, as such, the date of the schedule award was administratively
changed to August 18, 2017 because appellant had received compensation for disability through August 17, 2017.
15

Supra note 1.

16

20 C.F.R. § 10.404.

17

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
18

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

5

(ICF).19 Under the sixth edition, the evaluator identifies the impairment CDX, which is then
adjusted by the GMFH, GMPE, and GMCS.20 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).21
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides with the DMA providing rationale for the percentage of
impairment specified.22
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish more than three
percent permanent impairment of the right lower extremity or five percent permanent impairment
of the left lower extremity for which she previously received schedule award compensation.
On July 12, 2017 Dr. Signorelli found bilateral swelling of the feet and ankles, tenderness
to palpation, a pes planus deformity, and a positive Tinel’s sign. For the feet, he identified the
diagnosis plantar fibromatosis and assigned a CDX of 1 according to Table 16-2, which yielded a
default value of one percent. Dr. Signorelli applied the net adjustment formula which moved the
default value to grade E, for a two percent permanent impairment of each lower extremity.23 For
the ankles, he identified the applicable diagnosis as sprain/strain according for a CDX of 1
according to Table 16-2, which yielded a default value of one percent. Dr. Signorelli applied
assigned grade modifiers and applied the net adjustment formula to find no change from the default
value of one percent permanent impairment of each lower extremity.
On October 20, 2017 the DMA concurred with Dr. Signorelli’s finding that appellant had
two percent permanent impairment of each lower extremity due to her bilateral foot condition and
one percent permanent impairment of each lower extremity due to her bilateral ankle condition,
which he combined to find three percent permanent impairment of each lower extremity. He
determined that she had two percent permanent impairment of the left knee for residual problems
after arthroscopic surgery, which he combined with the three percent left lower extremity
impairment due to appellant’s foot and ankle condition to find five percent permanent impairment
of the left lower extremity.

19

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
20

Id. at 494-531.

21

Id. at 411.

22

See supra note 17 at Chapter 2.808.6(f) (February 2013).

23
Utilizing the net adjustment formula discussed above, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or
(2-1) + (2-1) + (1-1) = 2, yielded an adjustment of two.

6

The Board finds that there is no evidence of record demonstrating a greater impairment
than that assigned by the DMA and previously awarded.24 Appellant, thus has not established
more than three percent permanent impairment of the right lower extremity and five percent
permanent impairment of the left lower extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
A schedule award is payable consecutively, but not concurrently, with an award for wage
loss for the same injury.25 If a claimant loses wages to obtain medical treatment during the period
of a schedule award (e.g., claims hours due to a medical appointment with the treating physician),
compensation for the hours lost may be paid concurrently with a schedule award, as time lost for
medical appointments is not considered disability.26 However, time lost for disability surrounding
the appointment (if any) cannot be paid concurrently with a schedule award.27
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.28 A claimant is entitled to compensation for any time missed from work due to
medical examination or treatment for an employment-related condition.29 However, OWCP’s
obligation to pay for 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.30
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision regarding whether appellant has
met her burden of proof to establish entitlement to wage-loss compensation for 3.63 hours on
24

The A.M.A., Guides directs examiners to rate DBI’s for the lower extremities pursuant to Chapter 16, 2 which
indicates at page 497, section 16.2a that impairments are defined by class and grade using regional grids for the hip,
knee, and foot/ankle. The A.M.A., Guides explains that in most cases only one diagnosis in a region will be
appropriate. If a patient has two significant diagnoses, the examiner should use the diagnosis with the highest
impairment rating in that region that is causally related for the impairment calculation. A.M.A., Guides 497.
25

Supra note 17 at Chapter 2.808.4(a)(3) (February 2013).

26

Id.

27

Id. at Chapter 2.808.4(a)(4).

28

5 U.S.C. § 8103(a).

29

See supra note 17 at Chapter 2.901.19a (February 2013); see S.M., Docket No. 17-1557 (issued
September 4, 2018).
30

S.M., id.

7

October 31, 2017 for time lost to obtain medical treatment causally related to her accepted
employment injury.
On March 29, 2018 appellant filed a wage-loss compensation claim for intermittent LWOP
during the period October 31, 2017 through March 13, 2018. She claimed 3.63 hours of LWOP
on October 31, 2017 to attend a medical appointment. By decision dated April 16, 2018, OWCP
denied appellant’s claim for compensation for intermittent LWOP, due to time lost from work to
obtain medical care for 3.63 hours on October 31, 2017, as it found that she was not entitled to
receive schedule award compensation and wage-loss compensation for disability concurrently. As
set forth above, however, if a claimant incurs a loss of wages to obtain medical treatment during
the period covered by a schedule award, compensation for the hours lost may be paid concurrently
with the schedule award as time lost for medical appointments is not considered a payment of an
award of permanent disability.31
As OWCP denied appellant’s claim for 3.63 hours on October 31, 2017 based on its finding
that she was not entitled to time lost for medical treatment during a period of a schedule award, it
failed to adjudicate whether she had established that she had obtained medical treatment on that
date causally related to her accepted employment injury. On remand, it should determine whether
she is entitled to time lost on October 31, 2017 to obtain medical treatment as a result of her
accepted employment injury, to be followed by any necessary further development and a de novo
decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than three
percent permanent impairment of the right lower extremity and five percent permanent impairment
of the left lower extremity, for which she previously received schedule award compensation. The
Board further finds that the case is not in posture for decision regarding whether she has established
entitlement to wage-loss compensation for wage loss for 3.63 hours on October 31, 2017 due to a
medical appointment.

31

Supra note 22.

8

ORDER
IT IS HEREBY ORDERED THAT the December 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed. It is further ordered that the April 16, 2018
decision is set aside and the case is remanded for further proceedings consistent with this decision
of the Board.
Issued: March 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 11-1745
Issued: March 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 26, 2011 appellant filed a timely appeal from a June 23, 2011 Office of Workers’
Compensation Programs’ (OWCP) decision which denied his reconsideration request on the
grounds that it was untimely filed and failed to present clear evidence of error. Because more
than 180 days elapsed between the most recent OWCP merit decision of February 18, 2010 to
the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s June 9, 2011 request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2009 appellant, then a 37-year-old city carrier, filed a Form CA-2,
notice of occupational disease, alleging injury to his shoulder and elbow while casing mail. He
returned to work on December 3, 2009.2 In a statement dated December 8, 2009, appellant noted
that he began having problems with his right hand, shoulder and elbow six months prior and
attributed it to repetitive motions in casing mail daily, lifting mail trays and delivering mail. His
condition recently worsened and he sought medical treatment and physical therapy.
Appellant submitted a disability award from the Department of Veterans Affairs dated
October 27, 1999, finding a 20 percent service-connected disability. He came under the
treatment of Dr. C. Lee Jimmerson, a Board-certified internist, from November 13, 2003 to
May 15, 2008, for human immunodeficiency virus and chronic sinusitis. Appellant was treated
by Dr. John W. Baddley, a Board-certified internist, on June 1, 2004, for chronic infectious
disease who noted that appellant experienced fatigue and recommended a less strenuous job. He
was treated by Dr. Mathew Davis, a Board-certified internist, from June 27, 2006 to August 28,
2009, for a right wrist injury and who noted that appellant reached maximum medical
improvement on May 29, 2008 and could return to work with restrictions. Also submitted were
physical therapy notes from January to March 2009 which diagnosed right shoulder bicep
tendinitis, wrist pain and wrist sprain. On June 9, 2009 appellant was treated by a registered
nurse for a right wrist sprain. In a January 28, 2010 report, Dr. Kenneth W. Bramlett, a Boardcertified orthopedist, noted that appellant was scheduled for shoulder surgery on February 26,
2010 and could not work for two to three weeks.
By decision dated February 18, 2010, OWCP denied appellant’s claim finding that he
failed to establish fact of injury. The medical evidence failed to contain a medical diagnoses in
connection with the claimed work activities.
On May 24, 2011 appellant requested a review of the written record. On June 9, 2011 he
withdrew his request for a review of the written record and requested reconsideration before
OWCP. In a February 9, 2011 statement, appellant attributed his current shoulder condition to
his employment as a carrier for eight years where he repetitively cased mail and noted an onset
date of December 1, 2009.
Appellant submitted a duplicate Form CA-2, dated April 5, 2011. In a February 17, 2010
report, Dr. Michael Blum, a Board-certified orthopedic surgeon, diagnosed bilateral shoulder
rotator cuff tendinitis. Appellant reported being a mail carrier with an onset of bilateral shoulder
pain in January 2009. Dr. Blum noted findings of limited range of motion, good strength and
positive impingement in both shoulders. On March 17, 2011 appellant was treated by
Dr. Dewey H. Jones, III, a Board-certified orthopedist, who noted that appellant presented with
right shoulder pain which began several years prior. Dr. Jones noted findings of pain on range of
motion. He advised that there was concern that appellant’s injury was work related; however,
that had not been discerned. Dr. Jones noted x-rays revealed type III acromion and impingement
2

Appellant filed a claim for a right wrist injury which was accepted by OWCP in claim number xxxxxx813. This
claim is not before the Board on this appeal.

2

and underdevelopment of the left shoulder. He recommended a magnetic resonance imaging
(MRI) scan of the left shoulder and work up for rheumatoid arthritis. In an April 1, 2011 report,
Dr. Jones noted that a March 29, 2011 MRI scan of the right shoulder revealed an intrasubstance
tear in the biceps and a tear of the supraspinatus tendon. He opined that appellant’s condition
may be aggravated by casing mail at work. Dr. Jones recommended physical therapy.
By decision dated June 23, 2011, OWCP denied appellant’s request for reconsideration as
it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
OWCP will not review a decision unless the application for review is filed within one year of the
date of that decision.4 However, OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s application for review shows
clear evidence of error on the part of OWCP in its most recent merit decision. To establish clear
evidence of error, a claimant must submit evidence relevant to the issue that was decided by
OWCP. The evidence must be positive, precise and explicit and must be manifest on its face that
OWCP committed an error.5
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.6
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.7 It is not enough merely to show that
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

5

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

Annie L. Billingsley, supra note 4.

7

Jimmy L. Day, 48 ECAB 652 (1997).

3

the evidence could be construed so as to produce a contrary conclusion.8 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.9 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.10
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures establish a one-year time limitation period for
requesting reconsideration that begins on the date of the original OWCP decision.11 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.12
As appellant’s June 9, 2011 request for reconsideration was submitted more than one year after
the most recent merit decision of February 18, 2010, it was untimely. Consequently, he must
establish clear evidence of error by OWCP in denying his claim for compensation.13
Appellant’s correspondence on reconsideration attributed his current shoulder condition
to his employment as a carrier for eight years. He noted repetitively casing mail and that the
onset date was December 1, 2009. While appellant asserted that his shoulder condition was
caused by his repetitive work duties as a carrier, his general allegations do not establish clear
evidence of error as his arguments do not raise a substantial question as to the correctness of
OWCP’s decision. He has not established any specific error in OWCP’s most recent merit
decision that warrants a finding of clear evidence of error. Appellant did not explain how any of
his arguments or any of the evidence of record raised a substantial question concerning the
correctness of OWCP’s decision.
The Board notes that the underlying issue is medical in nature. On reconsideration,
appellant submitted a notice of occupational disease which was a duplicate of the CA-2 form
submitted on December 1, 2009. OWCP had previously considered this evidence and appellant,
in submitting this document, did not explain how this evidence was positive, precise and explicit
in manifesting on its face that OWCP committed an error in denying his claim for compensation.
It is not apparent how resubmission of this document is sufficient to raise a substantial question
as to the correctness of the OWCP’s decision.
Appellant submitted a February 17, 2010, report from Dr. Blum who diagnosed bilateral
shoulder rotator cuff tendinitis. He reported being a mail carrier with an onset of bilateral
shoulder pain in January 2009. Similarly, in a March 17, 2011 report, Dr. Jones noted treating
8

Id.

9

Id.

10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

11

20 C.F.R. § 10.607(a).

12

Robert F. Stone, 57 ECAB 292 (2005);

13

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

appellant for right shoulder pain. He noted that it had not been determined whether appellant’s
condition was work related. In an April 1, 2011 report, Dr. Jones noted that an MRI scan of the
right shoulder revealed an intrasubstance tear and opined that appellant’s work duties including
casing mail may aggravate his condition. However, these reports are insufficient to establish
clear evidence of error. 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. The term clear evidence
of error is intended to represent a difficult standard. The submission of a detailed wellrationalized medical report, which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.14 This
evidence is not so positive, precise and explicit that it manifests on its face that OWCP
committed an error. Consequently, the Board finds that Drs. Blum and Jones’ reports submitted
on reconsideration are insufficient to raise a substantial question as to the correctness of OWCP’s
decision. Thus, appellant has not established clear evidence of error by OWCP in its
February 18, 2010 decision.
On appeal, appellant asserts that he has submitted sufficient medical evidence to establish
that he sustained a work-related right shoulder injury in 2009. As discussed, however, he has not
raised any argument or submitted any evidence sufficient to raise a substantial question
regarding the correctness of OWCP’s last merit decision. On appeal, appellant reiterated his
arguments that he submitted sufficient evidence to establish his claim. The issue of whether
there is clear evidence of error in OWCP’s most recent merit decision is the only matter over
which the Board has jurisdiction. As explained, appellant has not established clear evidence of
error in OWCP’s decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration dated June 9, 2011 was
untimely filed and did not demonstrate clear evidence of error.

14

D.G., 59 ECAB 455 (2008); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3(c) (January 2004).

5

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2125
Issued: April 16, 2007

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 September 18, 2006 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs dated August 9, 2006 denying his claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability in December 2003 causally related to his August 31, 1996 accepted work
injury.
FACTUAL HISTORY
The Office accepted that appellant, then a 32-year-old mail handler, sustained a bilateral
hand strain/sprain on August 31, 1996 while opening letter trays in the performance of his duties.
This case was assigned file number A120163658. Appellant worked limited duty from
August 31, 1996 and returned to regular duty on September 26, 1996. He claimed a recurrence

of disability for this injury arising July 19, 1999, which the Office denied in a decision dated
December 21, 1999. Appellant was directed to file an occupational disease claim.
On January 11, 2000 appellant filed an occupational disease claim for pain in both hands
which the Office accepted for bilateral tendinitis of the hand and wrist. This case was assigned
file number A120187925 with a date of injury of July 19, 1999. The Office paid appropriate
benefits. On November 2, 2000 Dr. Bruce Cazden, a family practitioner, approved the
employing establishment’s permanent job offer for limited duty.
In a December 27, 2000 report, Dr. Richard Talbott, a Board-certified orthopedic surgeon
and second opinion physician, found no objective or abnormal findings to support a diagnosis.
He advised that appellant’s condition had resolved and he no longer needed any work restrictions
for his accepted condition of bilateral tendinitis of the hands and wrists.
In a July 2, 2001 report, Dr. David Price, a Board-certified family practitioner, noted that
appellant had been evaluated for the last two years for chronic intermittent pain, swelling and
crepitus in both hands. He noted that appellant had intermittent work limitations and a course of
physical therapy. Dr. Price reported normal readings for electromyogram (EMG) and nerve
conduction velocity studies as well as a bilateral hand x-ray. He stated that appellant’s history of
intermittent swelling and crepitus and objective physical findings of the same were consistent
with a bilateral repetitive motion tendinitis of the flexor tendons of the hand. Anti-inflammatory
medication, decreased weight requirements and restrictions on repetitive motion were
recommended for appellant’s chronic recurring condition.
On July 14, 2001 the Office found a conflict in medical opinion between Dr. Talbott, the
second opinion physician, and Dr. Price as to whether appellant continued to have objective
findings of the accepted condition. Appellant was referred, along with a statement of accepted
facts, a list of questions and the medical record, to Dr. Herbert H. Maruyama, a Board-certified
orthopedic surgeon, for an impartial medical evaluation. In an August 3, 2001 report,
Dr. Maruyama noted the history of work injury and medical treatment. No objective
abnormalities were noted on examination. He advised that, if appellant had a tendinitis condition
in his wrists and hands in the past, it had subsided as there was no evidence of any inflammatory
condition in his wrists and hands. Dr. Maruyama opined that appellant had no abnormal
orthopedic diagnosis and there was no reason to impose any restrictions on activities involving
appellant’s upper extremities.
On December 16, 2002 Dr. Cazden advised that appellant’s work-related tendinitis of the
upper extremities had resolved and maximum medical improvement was reached on
October 17, 2002. He further indicated that appellant had no restrictions.
On December 30, 2003 appellant claimed a recurrence of disability alleging that his
condition on or about July 19, 1999 continued to be related to the original work injury and his
occupational disease. He noted that he worked limited duty and believed his condition was
caused by repetitive motion.1

1

The employing establishment confirmed that appellant worked light duty.

2

In a January 7, 2004 letter, the employing establishment challenged the claim. It stated
that appellant applied for permanent light duty for an off-the-job injury in October 2002 related
to his upper extremities. The employing establishment stated that appellant worked modified
duty until December 19, 2003, when he was sent home because it was unable to accommodate
his nonjob-related restrictions.2 The record reflects that appellant was provided with a
permanent light-duty assignment similar to that of his job-related restrictions.
In a letter dated March 15, 2004, the Office advised appellant that additional factual and
medical information was needed. In an April 7, 2004 statement, appellant stated that the
problems with his hands started in 1999 and he continued to have the same problems. He
indicated that he was put on permanent weight restrictions with a diagnosis of tendinitis in both
hands and wrists.
In an April 2, 2004 report, Dr. Dianne Glenn, a Board-certified family practitioner,
advised that appellant had been treated since July 1999 for hand pain and diagnosed with
repetitive motion injury and/or tendinitis of the hands and wrists. She indicated that a
January 2004 electromyogram (EMG) showed mild carpal tunnel of the right hand. Dr. Glenn
stated that appellant had been on work restrictions for approximately five years and she did not
anticipate significant improvement. A March 27, 2004 note from Anthony Caliendo, a certified
physician’s assistant, was also provided.
By decision dated April 26, 2004, the Office denied appellant’s claim for recurrence of
disability on the grounds that the medical evidence failed to establish that the claimed disability
was causally related to the accepted work injuries.
On April 30, 2004 appellant disagreed with this decision and requested an oral hearing,
which was held February 24, 2005. He stated that he never returned to his regular duty and had
continued to work with restrictions following Dr. Maruyama’s August 2001 impartial
examination. Dr. Maruyama stated that, since 2001, he performed “coding mail” and “call mail”
which required him to grab mail, cut it open, bundle it and put it in a tray. Appellant further
stated that he stopped work on or about December 5, 2003 as the employing establishment no
longer had any light duty available for him. Dr. Maruyama indicated that appellant had no other
injuries (work or nonwork related) between December 2002 and December 2003. Appellant
further indicated that his December 12, 2003 restrictions from Dr. Glenn were updated
restrictions on his work-related injuries.
In a June 12, 2004 report, Dr. Glenn reiterated that appellant was first seen in July 1999
with complaints of dorsal and palmar hand pain, which were worse with repetitive lifting and
opening and was diagnosed with repetitive strain injury. She indicated that appellant was next
seen in July 2001 and again for several times over the last several years for his bilateral wrist and
hand pain. All examinations and x-rays were reported as normal and/or unremarkable even
though appellant still had complaints of intermittent bilateral hand pain, worse with certain
activities/movements. Dr. Glenn noted that the January 7, 2004 EMG study showed mild right
carpal tunnel while the other testing done in December 2003 was unremarkable. She also noted
2

The employing establishment stated that it sent appellant a letter on July 3, 2002 notifying him that his workers’
compensation claim was closed based on Dr. Maruyama’s August 2001 impartial examination.

3

that appellant had been on work restrictions for the last several years. Dr. Glenn opined that
appellant could work with minor restrictions and advised that she did not see a surgically
treatable problem. Treatment notes of June 21, 2004 indicated normal grip strength, sensory and
motor function within normal limits, no point tenderness, full range of motion and no evidence
of synovitis. Dr. Glenn’s treatment notes from November 4 and December 12, 2003 and
January 20, 2004 were also submitted. In her November 4, 2003 treatment note, she assessed
hand pain and repetitive strain injury and imposed a 40-pound lifting restriction. In her
December 12, 2003 treatment note, Dr. Glenn reported that appellant had numbness in the right
long and ring finger which was worse with grasping at work. A decreased sensation was noted
along the right long and ring finger and paresthesia was assessed. Appellant was referred to
neurology and provided restrictions for grasping. In her January 20, 2004 treatment note,
Dr. Glenn advised that appellant’s restrictions were provided in accordance to his complaints.
In a January 7, 2004 treatment note, Dr. Jack Sylman, a Board-certified neurologist,
advised that EMG and nerve conduction studies showed mild right carpal tunnel syndrome.
In an April 22, 2005 report, Dr. Glenn reiterated that appellant had been seen for hand
strain/repetitive motion injury since July 19, 1999 with no reported specific injury other than
pain after repeated “lifting and opening.” She noted that appellant was seen two to three times a
year for the same symptoms and medicine for flare-ups were occasionally needed. Dr. Glenn
opined that, after six years, she did not think his symptoms would resolve as long as he
maintained his current job. She advised that appellant’s symptoms were controlled with the
current work restrictions and reported that his examination was unremarkable. Dr. Glenn opined
that she believed appellant had the same problem from 1999 and might even go back to 1996,
although she did not have such data available.
After review of the hearing transcript, the employing establishment submitted comments
dated March 29, 2005. The employing establishment noted that, based on Dr. Maruyama’s
impartial examination, it had sent appellant a letter on July 3, 2002 notifying him that his
workers’ compensation claim was closed and he was being returned to full duty. It further noted
that, since appellant had permanent light-duty restrictions, it had provided him light-duty
assignments similar to the limited-duty assignments he had for his July 19, 1999 job-related
injury.3 The employing establishment further stated that appellant had worked the same lightduty assignment since October 2002 and that he was currently working a permanent light-duty
assignment, which he had accepted on July 10, 2004.
By decision dated May 19, 2005, the Office’s hearing representative affirmed the
April 26, 2004 decision, finding that appellant did not establish that he sustained a recurrence of
disability after December 30, 2003 as alleged.
In a May 11, 2006 letter, appellant requested reconsideration and asserted that this was
the same condition and injury which was diagnosed in June 1999. Duplicative medical reports,

3

It noted that the District Reasonable Accommodation Committee (DRAC) found appellant’s December 12, 2003
restrictions almost identical to his previous restrictions and determined that he was not qualified within the meaning
of the Rehabilitation Act.

4

previously of record, were submitted along with Family Medical Leave Act (FMLA)
documentation.
In a March 6, 2006 report, Dr. Jorge O. Klajnbart, a Board-certified orthopedic surgeon,
examined appellant for purposes under the FMLA. He provided an assessment of bilateral wrist
arthralgia, right greater than left, secondary to overuse syndrome. Dr. Klajnbart opined that
appellant’s condition was chronic and indefinite while employed in his current capacity.
By decision dated August 9, 2006, the Office denied modification of its prior decisions
denying recurrence.
LEGAL PRECEDENT
A recurrence of disability means the inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or a new exposure to the work environment. This
term also means an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.4
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence
establishes that he can perform the limited-duty position, the employee has the burden of proof to
establish a recurrence of total disability and that he cannot perform such limited-duty work. As
part of this burden of proof, the employee must show a change in the nature or extent of the
injury-related condition or a change in nature and extent of the light-duty job requirements.5
This includes the necessity of furnishing medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the disabling condition is
causally related to employment factors and supports that conclusion with sound medical
reasoning.6 An award of compensation may not be made on the basis of surmise, conjecture,
speculation or on appellant’s unsupported belief of causal relation.7
ANALYSIS
The Office accepted that appellant sustained a bilateral hand strain/sprain on August 31,
1996 and bilateral tendinitis of the hands and wrists on July 19, 1999. In October 2002,
appellant was placed on permanent limited-duty assignments. On December 30, 2003 he
claimed a recurrence of disability alleging that his hand and wrist conditions were attributed to
his work injuries. Appellant stopped work in December 2003 because the employing
4

20 C.F.R. § 10.5(x). See also Philip L. Barnes, 55 ECAB 426 (2004).

5

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

6

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

Patricia J. Glenn, 53 ECAB 159 (2001).

5

establishment no longer had light-duty work available for him. He subsequently returned to a
permanent light-duty assignment, which the employing establishment stated was not related to
his accepted work injuries, but similar in nature to his light-duty assignments for his workrelated injury.
The Board initially notes that the record contains an August 3, 2001 report from
Dr. Maruyama, an impartial medical specialist, who opined that appellant’s work-related
residuals had resolved. The Office, however, never issued a decision finding that appellant’s
work-related residuals had resolved. As such, the employing establishment’s reliance on
Dr. Maruyama’s August 3, 2001 report to find appellant’s light-duty assignments on and after
October 2002 were based on “nonwork-related” restrictions is not sufficiently supported.
Furthermore, as noted above, such light-duty assignments were similar in nature to appellant’s
light-duty assignments previously provided for his work-related injuries and the subsequent
medical evidence indicated a need for continuing work restrictions.
Appellant alleged, and the record establishes that his limited-duty assignment,
necessitated by his employment injury, was withdrawn on or about December 19, 2003. Thus,
by definition, appellant sustained a recurrence of disability on or about December 19, 2003 when
the employing establishment was unable to accommodate his restrictions.8 While the record
reflects that appellant was working a permanent light-duty assignment since July 10, 2004, the
record does not contain any information pertaining to how long appellant remained off work due
to the employing establishment’s inability to accommodate his job restrictions from
December 19, 2003 onwards. Thus, the case will be remanded for the development of evidence
relevant to the period of disability, if any. After such development as it deems necessary, the
Office should issue an appropriate decision in this matter.9
CONCLUSION
The Board finds that, although appellant established a recurrence of disability from
December 19, 2003 onward, the case is remanded for a determination on the length of disability.

8

20 C.F.R. § 10.5(x) (1999). See Jackie B. Wilson, 39 ECAB 915, 919 (1988).

9

Given the disposition of this case, it is not necessary for the Board to evaluate whether the medical evidence
showed appellant suffered a worsening of his employment-related condition such that he was no longer able to
perform light duty.

6

ORDER
IT IS HEREBY ORDERED THAT the August 9, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: April 16, 2007
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

7