United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 07-1894
Issued: April 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 11, 2007 appellant filed a timely appeal from an April 6, 2007 decision of the
Office of Workers’ Compensation Programs denying his request for further merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. As the most recent merit decision of record, a March 14, 2006 decision denying an
increase in a schedule award, is more than one year old, the Board lacks jurisdiction to review
the merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On November 20, 1999 appellant, then a 46-year-old mail processor, filed an
occupational disease claim alleging that, as a result of his federal duties, he sustained an
1

20 C.F.R. § 501.3(d)(2).

aggravation of degenerative arthritis of both hips, right greater than left. In a statement dated
January 15, 2000, he indicated that his injury was a result of repetitive strenuous duties,
including standing, lifting trays of mail weighing between 10 and 35 pounds, bending, twisting
and kneeling. By letter dated September 1, 2000, the Office accepted appellant’s claim for
aggravation of degenerative arthritis, bilateral hips. On June 20, 2002 he underwent a total right
hip replacement. Appropriate compensation and medical benefits were paid. On October 27,
2003 the Office issued a schedule award for a 60 percent bilateral impairment of both lower
extremities.
In a medical report dated October 5, 2005, Dr. Jeffrey W. Martin, a Board-certified
orthopedic surgeon, stated that appellant had reached maximum medical improvement with
regard to his hip. He noted that his final diagnosis was right hip pain of uncertain etiology, with
a secondary diagnosis of prosthetic right hip replacement. Dr. Martin noted that his permanent
impairment to the extremity at the level of the right hip was 50 percent. On November 8, 2005
appellant filed another claim for a schedule award. In a report dated January 13, 2006, the Office
medical adviser noted that Dr. Martin’s evaluation did not conform to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 1991). It did not
provide sufficient information for determining appellant’s rating pursuant to the A.M.A., Guides.
The Office medical adviser recommended that appellant be referred to a physician skilled in the
application of the A.M.A., Guides for an impairment rating.
On February 1, 2006 the Office referred appellant to Dr. John A. Gragnani, a Boardcertified physiatrist, for a second opinion examination. In a medical report dated February 16,
2006, Dr. Gragnani reviewed appellant’s records, discussed his physical examination including
his measurements and impairment ratings, and determined that appellant had a 50 percent
impairment of the lower extremity for the right hip and a 5 percent impairment rating for the left
lower hip pursuant to the A.M.A., Guides.2 In a report dated March 6, 2006, the Office medical
adviser noted that Dr. Gragnani’s impairment ratings were acceptable based on the A.M.A.,
Guides.
By decision dated March 14, 2006, the Office determined that appellant was not entitled
to any additional schedule award since the recent impairment rating was less than the impairment
rating of the prior schedule award.
On March 14, 2007 appellant filed a request for reconsideration of the March 14, 2006
decision of the Office. He argued that he remained permanently disabled by a condition causally
related to employment and that the Office improperly terminated his benefits. Appellant
submitted a March 8, 2007 report from Dr. Martin, who stated:
“[Appellant’s] exam[ination] today shows a healed scar without induration or
swelling over his right hip. He has essentially supple ROM [range of motion] in
both hips including 100 [degrees] flexion, 40 [degrees] abduction, 30 [degrees]
internal rotation and 35 [degrees] external rotation. There is essentially no
irritability during passive ROM testing. [Appellant] is able to perform a sustained
straight leg raising and slight resistance on both sides though he does complain of
2

In making this determination, Dr. Gragnani utilized Tables 17-33 and 7-34 of the A.M.A., Guides.

2

discomfort during the maneuver bilaterally. He is mildly tender over the
posterolateral trochanteric region bilaterally. [Lumbosacral] spine is nontender.
Negative seated straight leg raising to 90 [degrees]. No atrophy of his
extremities. Pedal pulses are 2+ [deep pulse] bilaterally. Gait is unremarkable.
“X-rays of [appellant] hips show an unremarkable appearing cementless [total hip
replacement] on the right. On the left he has early degenerative superior joint
space narrowing with sclerosis and small osteophytes.
“I had a long talk today with [appellant] concerning his hip complaints. I feel his
left hip radiographically shows evidence of degenerative arthritis, but I do not see
significant degree of worsening of the condition at least on x-ray since his last
films. He also has no evidence for any abnormality structurally about his right
hip prosthesis. Some degree of pain may be coming from bilateral trochanteric
bursitis which is diagnosed on the basis of his localized tenderness. [Appellant] is
aware this problem is not likely to worsen or ever become crippling in nature.
The maximum treatment typically involves the use of mild analgesics, stretching,
aquatherapy, heat/cold application and possibly massage or ultrasound. The
problem is also expected to wax and wane over time. He was given a prescription
today for [physical therapy] to include aquatherapy for stretching and
strengthening in both hips.”
By decision dated April 6, 2007, the Office denied appellant’s request for
reconsideration. The Office found that appellant failed to provide new and relevant evidence
sufficient to warrant further merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.4 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
In support of his request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his burden of proof.6 Appellant need only submit

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2) (2003).

5

20 C.F.R. § 10.608(b) (2003).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

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relevant, pertinent evidence not previously considered by the Office.7 When reviewing an Office
decision denying a merit review, the function of the Board is to determine whether the Office
properly applied the standards set forth at section 10.606(b)(2) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant’s claim was accepted for aggravation of degenerative arthritis, both hips.
Compensation and medical benefits were paid. In a decision dated October 27, 2003, the Office
issued a schedule award for a 60 percent bilateral impairment to appellant’s lower extremities.
On November 8, 2005 appellant filed another claim for a schedule award. Dr. Martin,
appellant’s treating physician, indicated in a report dated October 5, 2005 that he had an
impairment of his right hip of 50 percent. As this report did not conform to the A.M.A., Guides
the Office referred appellant to Dr. Gragnani for a second opinion and in a report dated
February 16, 2006, Dr. Gragnani applied the A.M.A., Guides and determined that appellant had a
50 percent impairment of his right hip and a 5 percent impairment of his left hip. By decision
dated March 14, 2006, the Office determined that appellant was not entitled to any additional
schedule award since the impairment rating of Dr. Gragnani was less than the impairment noted
in appellant’s previous schedule award. On March 14, 2007 appellant requested reconsideration.
The underlying issue in this case is whether appellant has more than a 60 percent bilateral
impairment to the lower extremities. In support of his request for reconsideration, appellant
submitted a March 8, 2007 report from Dr. Martin. Although the physician listed findings
regarding the right hip, he did not discuss appellant’s impairment to either lower extremity.
Rather, his comments were limited to a general discussion of appellant’s complaints with regard
to his right hip. As Dr. Martin never addressed the nature or extent of impairment, this report is
irrelevant to the underlying issue. The Board has held that the submission of evidence which
does not address the particular issue involved does not comprise a basis for reopening a case.9
In his request for reconsideration before the Office and on appeal before the Board,
appellant contends that the Office failed to establish that his disability had ceased or was no
longer related to his employment. However, the March 14, 2006 decision from which appellant
requested reconsideration is not a decision regarding the termination of benefits; it is a decision
on appellant’s schedule award. Accordingly, his argument is not on point. Therefore, appellant
did not advance a relevant legal argument not previously considered by the Office not did
appellant show that the Office erroneously applied or interpreted a specific point of law. As he
has not met any of the criteria for requiring merit review of his claim, the Office properly denied
his request for reconsideration.

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louis, 54 ECAB 783 (2003).

9

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

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CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2007 is affirmed.
Issued: April 1, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 07-1847
Issued: November 19. 2007

Case Submitted on the Record

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

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from a March 9, 2007 Office of Workers’
Compensation Programs’ decision denying his request for reconsideration and a January 10,
2007 decision denying his claim for an injury on October 12, 2006. 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 sustained an injury on October 12, 2006 while in
the performance of duty; and (2) whether the Office abused its discretion in denying his request
for reconsideration.
FACTUAL HISTORY
On October 18, 2006 appellant, then a 52-year-old mail handler, filed a claim alleging
that on October 12, 2006 he sprained his left shoulder while unloading mail trucks and pulling

APCs (all purpose containers). In a written statement he noted that, for 23 years his duties had
included pulling BMCs (bulk mail containers), APCs, wire cages and hampers.1
In reports dated October 18 and 24, 2006, Dr. Remigio L. Abello diagnosed a sprain of
the left shoulder and upper arm. He indicated that appellant was pulling APCs on October 12,
2006 when he “heard something pop.” An October 18, 2006 x-ray of appellant’s left shoulder
was reported as normal.
In reports dated October 19 and November 21, 2006, Dr. Matthew Levy, an attending
orthopedic surgeon, stated that appellant’s work duties included pulling and pushing carts and
unloading trucks. He recently experienced an episode where his “arch fell” on the left side,
which he felt had caused him hip and shoulder problems. Appellant also noted a small knot on
his left shoulder and that he had been having trouble sleeping. Dr. Levy provided findings on
physical examination and diagnosed a torn rotator cuff of the left shoulder.2
Appellant also submitted reports from physical therapists.
On December 4, 2006 the Office requested additional evidence, including a medical
report containing a rationalized explanation as to how appellant’s diagnosed left shoulder strain
and rotator cuff tear were causally related to the October 12, 2006 work incident. It noted that he
had alleged that his left shoulder injury occurred as the result of a specific event on
October 12, 2006. However, it appeared that appellant had also attributed the injury to 23 years
of job activities. The Office asked him to clarify whether his injury occurred due to a specific
incident on October 12, 2006 or whether it was due to events or factors over the course of more
than one work shift. Appellant did not respond.
By decision dated January 10, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that he sustained an injury to his left shoulder on
October 12, 2006 causally related to his employment.
On February 6, 2007 appellant requested reconsideration of his claim. He stated, “I feel
as though the entire profile of my medical condition was not presented.” Appellant noted that he
had changed physicians and indicated that his new physician, Dr. Anthony George, would
provide additional evidence. No additional evidence was submitted.

1

Appellant filed an occupational disease claim for the same injury and date.

2

A November 6, 2006 MRI (magnetic resonance imaging) scan report of appellant’s left upper extremity
indicated a focal, full thickness tear and partial fiber retraction of the supraspinatus tendon and degenerative
hypertrophic changes at the acromioclavicular (AC) joint without gross impingement.

2

By decision dated March 9, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant further merit
review.3
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden to establish the essential elements of his claim including the fact that the individual is an
employee of the United States within the meaning of the Act, that the claim was timely filed, 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 to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place and in the manner alleged.6 Second, the employee must
submit medical evidence to establish that the employment incident caused a personal injury.7 An
employee may establish that the employment incident occurred as alleged but fail to show that
his disability or condition relates to the employment incident.
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, he must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background 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.8

3

Subsequent to the March 9, 2007 decision, appellant submitted additional 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).
The Board may not consider this evidence for the first time on appeal.
4

5 U.S.C. §§ 8101-8193.

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Shirley A. Temple, 48 ECAB 404 (1997).

8

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

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ANALYSIS -- ISSUE 1
The Board finds that the evidence is insufficient to establish that appellant sustained a left
shoulder injury on October 12, 2006 while in the performance of duty.
Dr. Abello diagnosed a sprain of the left shoulder and upper arm in his reports. He
indicated that appellant was pulling APCs on October 12, 2006 when he “heard something pop.”
However, Dr. Abello did not describe the mechanism of injury, i.e., how the act of pulling APCs
on October 12, 2006 caused a left upper extremity sprain. He did not provide medical rationale
explaining how appellant’s left shoulder sprain was causally related to the October 12, 2006
work incident. Therefore, Dr. Abello’s reports are insufficient to establish that appellant
sustained an employment-related left shoulder injury on October 12, 2006.
Dr. Levy stated that appellant’s work duties included pulling and pushing carts and
unloading trucks. Recently, appellant experienced an incident where his “arch fell” on the left
side and he experienced hip and shoulder problems. There was a knot on his left shoulder and
appellant developed sleep problems. Dr. Levy provided findings on physical examination and
diagnosed a torn rotator cuff of the left shoulder. However, the history of the injury given by
him differs from the history provided by appellant and Dr. Abello, that he was unloading trucks
and pulling APCs. Dr. Levy did not provide a rationalized medical explanation as to how
appellant’s torn left rotator cuff was caused by an event or factor of his employment. Therefore,
the report from Dr. Levy is insufficient to discharge appellant’s burden of proof as to causal
relationship.
Appellant submitted reports from his physical therapists. However, as a physical
therapist is not a physician under the Act, these reports do not constitute probative medical
evidence.9
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act10 vests the Office with discretionary authority to determine
whether it will review an award for or against compensation. The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] 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.”
The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by: (1) showing that the Office erroneously applied or interpreted a specific
9

See Jennifer L. Sharp, 48 ECAB 209 (1996).

10

5 U.S.C. § 8128(a).

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point of law; or (2) advancing a relevant legal argument not previously considered by the Office;
or (3) submitting relevant and pertinent evidence not previously considered by the Office.11
When an application for review of the merits of a claim does not meet at least one of these
requirements, the Office will deny the application for review without reviewing the merits of the
claim.12
ANALYSIS -- ISSUE 2
In support of his request for reconsideration, appellant submitted no new medical
evidence. He stated his feeling that the entire profile of his medical condition was not presented.
Appellant noted that he had changed physicians and indicated that his new physician would
provide additional evidence. However, no additional evidence was submitted. Appellant did not
submit evidence of whether his left shoulder condition was caused by his work activities on
October 12, 2006 or other employment factors. Additionally, he did not respond to the Office’s
request that he clarify whether his left shoulder injury occurred due to a specific incident on
October 12, 2006 or whether it was due to events over the course of more than one work shift.
For these reasons, appellant’s statement does not constitute relevant and pertinent evidence not
previously considered by the Office. He also did not submit any evidence showing that the
Office erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered.
As appellant did not show that the Office erroneously applied or interpreted a specific
point of law; or advance a relevant legal argument not previously considered by it; or submit
relevant and pertinent evidence not previously considered by the Office, it did not abuse its
discretion in denying his request for reconsideration.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a left shoulder injury
on October 12, 2006 while in the performance of duty. It further finds that the Office did not
abuse its discretion in denying his request for reconsideration.

11

20 C.F.R. § 10.606(b)(2).

12

20 C.F.R. § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 9 and January 10, 2007 are affirmed.
Issued: November 19, 2007
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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Appearances:
Stanley R. Stein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0035
Issued: June 22, 2018

Case Submitted on the Record

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

JURISDICTION
On October 14, 2016 appellant, through counsel, filed a timely appeal from an April 21,
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 case.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 notes that appellant submitted additional evidence after OWCP rendered its April 21, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability for the period August 22, 2010 to February 24, 2014, causally related to his February 23,
2009 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 By decision dated October 24, 2013, the
Board affirmed a May 30, 2012 decision of OWCP, which found that appellant had not met his
burden of proof to establish a recurrence of total disability beginning on or after February 24, 2010,
causally related to his employment-related conditions. The facts and circumstances as set forth in
the prior Board decision are incorporated herein by reference.
On February 23, 2009, appellant, then a 43-year old part-time flexible clerk, was injured
when he bent over a hamper to retrieve a bundle of flats and felt pain through his lower back. On
November 2, 2011 OWCP accepted the claim for lumbar and thoracic sprains and displacement of
a lumbar intervertebral disc without displacement. OWCP expanded the acceptance of the claim
to include dysthymic disorder on May 31, 2012.
OWCP continued to develop the claim.
OWCP received medical records and treatment notes from Dr. Nick Marzella, Ph.D, a
clinical psychologist, and Dr. Stephen Altic, a Board-certified family practitioner and osteopath,
intermittently from August 22, 2010 to the present. The relevant report related to the present claim
is a September 13, 2010 report from Dr. Marzella. On that date he evaluated appellant and
diagnosed dysthymic disorder, personality disorder, not otherwise specified (NOS), and back
injury. Dr. Marzella opined that appellant’s current emotional distress was a result of his
employment-related injury and its subsequent impact on his lifestyle.
On January 11, 2013 appellant filed a Form CA-7 claim for compensation, requesting
compensation for leave without pay for the period August 22, 2010 and continuing.5
OWCP continued to develop the claim and, by letter dated April 10, 2014, referred
appellant, along with a statement of accepted facts, a set of questions, and the medical record, to
Dr. Alan B. Levy, a Board-certified psychiatrist, for a second opinion evaluation.
In a May 2, 2014 report, Dr. Levy noted appellant’s history of injury and treatment and
provided his findings on examination. He explained that the initial psychological evaluation of
September 30, 2010 indicated symptoms of depression leading to a diagnosis at dysthymic
disorder directly due to appellant’s job-related injury. Dr. Levy explained that appellant had been
regularly meeting with Dr. Marzella for psychotherapy, but not until June 2012, with a setback
occurring in September 2012, which required psychiatric hospitalization. He noted that
4

Docket No. 13-0266 (issued October 24, 2013).

5

The employing establishment terminated appellant’s employment in December 2013.

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Dr. Marzella had explained that appellant remained disabled from work as a result of his
depression. Dr. Levy reviewed the most recent report from Dr. Marzella dated February 24, 2014.
He noted that, in that report, Dr. Marzella did not note any restrictions warranted by the psychiatric
condition. Dr. Levy explained that Dr. Marzella indicated that appellant had recovered
sufficiently, such that he was able to return to work at that time and there was no indication of any
restrictions warranted by his psychiatric condition. He also noted that appellant was hospitalized
on September 15, 2012 for major depression and explained that appellant’s claim was allowed for
dysthymic disorder, which became more intense over time and led to a psychiatric hospitalization
and a diagnosis of major depression. Dr. Levy advised that appellant had recovered and was
currently free from dysthymic or major depression symptoms.6 He elaborated that appellant’s
symptoms of depression began subsequent to his leaving work and his frustration with the
unwillingness of his supervisor to permit the restrictions that he was to be limited to. Furthermore,
there were increased conflicts with work to include letters from his supervisor reprimanding him
for not coming into work even though he had submitted medical documentation that his physician
had taken him off work. Dr. Levy opined “within a reasonable degree of certainty that
[appellant’s] depression began as a result of his worker’s comp[ensation] injury and his inability
to remain at work.” He opined that it was sufficiently improved to no longer prohibit him from
returning to employment and that appellant was able to work in any position for which he is
physically capable.
By letter dated March 10, 2015, OWCP informed appellant of the type of evidence needed
to support his claim and requested that he submit such evidence within 30 days.
In letters dated March 19 and April 9, 2015, counsel provided additional information. He
also provided a copy of an obituary for Dr. Marzella.
OWCP also received medical records dating from September 15, 2012 to May 6, 2015.
The relevant reports included a February 24, 2014 report in which Dr. Marzella opined that
appellant was disabled and unable to work on and after February 24, 2010. In the report, he did
not provide medical rationale to support his opinion that appellant was unable to work.
By decision dated May 13, 2015, OWCP denied the claim for the period August 22, 2010
to February 24, 2012. It found that the evidence of record failed to establish disability for the
claimed period due to the accepted work injury. It noted that the medical evidence submitted had
no contemporaneous discussion of disabling work factors with a rationalized medical discussion
of those factors and no discussion or reference to contemporaneous examination findings or
diagnostic results explaining the causal relationship of the disabling work factors and the
dysthymic disorder.
On May 27, 2015 counsel requested a hearing before an OWCP hearing representative,
which was scheduled for February 9, 2016. During the hearing, appellant testified that he
remained under the care of Dr. Marzella until the doctor’s death on March 19, 2015.
In a letter dated November 9, 2015, counsel indicated that the issue involved payment of
compensation due to appellant’s inability to work beginning August 22, 2010 as a result of his
6

A copy of the hospital report was in the record. The report notes that appellant was hospitalized for several days.

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dysthymic disorder, which was accepted on March 31, 2012. He noted that appellant was
hospitalized in September 2012 and the records were in the file. Furthermore, counsel noted that
he spoke to Ms. Nieves with OWCP on September 12, 2014 and was informed that they would
pay for the psychiatric condition when they received pay rate information. He noted that appellant
was released to return to work by Dr. Marzella on February 24, 2014. Counsel noted his
understanding that the only issue was the pay rate calculation. He also noted that on December 1,
2014, OWCP responded and indicated that a payment would be processed.
OWCP received a copy of a notification of personnel action and a duplicate copy of
Dr. Marzella’s obituary.
OWCP received numerous treatment notes for appellant’s accepted condition dating from
July 20, 2013 to March 15, 2016, including records and treatment notes from Grandview Family
Practice and Amy Marzella Spiess, a behavioral specialist, Hope Schrim, a professional clinical
counselor, and Dr. Stephen Altic.
By decision dated April 21, 2016, OWCP’s hearing representative affirmed the May 13,
2015 decision. She found that the medical evidence of record was insufficient to establish that
appellant was totally disabled for work for the period August 22, 2010 to February 24, 2014
causally related to the February 23, 2009 work injury.
LEGAL PRECEDENT
A claimant seeking benefits under FECA7 has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,8 including that he or she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he or she claims compensation is causally related to that employment injury.9
As used in FECA, the term “disability” means incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.10 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his employment, he is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.11
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the

7

5 U.S.C. §§ 8101-8193.

8

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

9

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

10

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(f).
11

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

4

reliable, probative, and substantial medical evidence.12 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a physician’s
statements regarding an employee’s ability to work consist only of repetition of the employee’s
complaints that he experienced too much pain to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a basis
for payment of compensation.13 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of disability
for which compensation is claimed. To do so would essentially allow employees to self-certify
their disability and entitlement to compensation.14
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for lumbar sprain, thoracic sprain, and displacement of
lumbar intervertebral disc without myelopathy. It expanded the claim to include dysthymic
disorder on May 31, 2012. On February 12, 2010 appellant accepted a modified assignment that
involved sitting for six hours daily. This assignment was based on the February 11, 2010
restrictions of appellant’s physician, Dr. Altic, a Board-certified family practitioner, who advised
that appellant could occasionally lift up to 10 pounds and had no restrictions on sitting. Beginning
February 24, 2010, appellant claimed compensation asserting that he was totally disabled from
work. In the prior appeal, the Board found that appellant did not meet his burden of proof to
establish a recurrence of total disability due to the accepted conditions beginning on or after
February 24, 2010. At that time, dysthymic disorder was not an accepted condition.
However, in the present appeal, the Board notes that the condition of dysthymic disorder
was accepted on May 31, 2012. On January 13, 2013 appellant filed a new Form CA-7, claiming
disability compensation for the period August 22, 2010 and continuing. He provided several
medical reports to support his claim. The Board notes that he was attributing his inability to work
to the condition of dysthymic disorder.
OWCP developed the claim and referred appellant for a second opinion examination with
Dr. Levy, a Board-certified psychiatrist. Dr. Levy examined appellant on May 2, 2014. He noted
appellant’s history of injury and treatment and examined appellant. Dr. Levy explained that the
initial psychological evaluation of September 30, 2010 indicated symptoms of depression leading
to a diagnosis at dysthymic disorder directly due to appellant’s job-related injury. He explained
that appellant had been regularly meeting with Dr. Marzella for psychotherapy since June 2012
with a setback occurring in September 2012, which required psychiatric hospitalization. Dr. Levy
noted that Dr. Marzella explained that appellant remained disabled from working as a result of his
depression. He reviewed the most recent report from Dr. Marzella dated February 24, 2014.
Dr. Levy noted that, in that report, Dr. Marzella did not note any restrictions warranted by the
12

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

13

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

14

G.T., id.; Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

5

psychiatric condition. He explained that Dr. Marzella had indicated that appellant had recovered
sufficiently to be able to return to work at that time and that there was no indication of any
restrictions warranted by his psychiatric condition. Dr. Levy also noted that appellant was
hospitalized on September 15, 2012 for major depression and explained that appellant’s claim was
allowed for dysthymic disorder, which became more intense over time and led to a psychiatric
hospitalization and a diagnosis of major depression. He advised that appellant had recovered and
was currently free from dysthymia or major depression symptoms.15 Dr. Levy elaborated that
appellant’s symptoms of depression began subsequent to his leaving work and his frustration with
the unwillingness of his supervisor to permit the restrictions that he was to be limited to.
Furthermore, there were increased conflicts with work to include letters from his supervisor
reprimanding him for not coming into work even though he had submitted medical documentation
that his physician had taken him off from work. Dr. Levy opined that “within a reasonable degree
of certainty that [appellant’s] depression began as a result of his worker’s comp[ensation] injury
and his inability to remain at work.” He opined that it was sufficiently improved to no longer
prohibit him from returning to employment and that appellant was able to work in any position for
which he is physically capable. The Board finds that the report from Dr. Levy requires
clarification. While he indicated that Dr. Marzella did not provide any restrictions from work,
Dr. Levy also noted that appellant’s condition deteriorated such that he was hospitalized.
Furthermore, Dr. Levy opined that the condition of dysthymic disorder was sufficiently improved
to no longer prohibit him from returning to employment and that appellant was able to work in any
position for which he is physically capable. The record, as it stands, is unclear. Dr. Levy indicates
that the condition prohibited appellant from working at some point and was not improved.
Furthermore, the record supports a psychiatric hospitalization. Additionally, it appears that the
condition may have affected his ability to work. Additional detail is needed with regard to the
extent of the disability and the period of time that appellant was unable to work due to the expanded
condition of dysthymic disorder.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.16 Once
OWCP undertakes development of the record it must procure medical evidence that will resolve
the relevant issues in the case.17 It began to develop the evidence when it referred appellant to
Dr. Levy for a second opinion on the status of her accepted conditions which included dysthymia.
Dr. Levy explained that appellant had been under psychiatric treatment, including hospitalization,
but he did not make findings as to appellant’s ability to work during the period August 22, 2010
to February 24, 2014, and whether such disability from work was causally related to the accepted
work injury.18

15

A copy of the hospital report was in the record.

16

Horace L. Fuller, 53 ECAB 775, 777 (2002).

17

Phillip L. Barnes, 55 ECAB 426 (2004).

18

See P.E., Docket No. 17-0961 (issued March 14, 2018).

6

The Board will remand the case to OWCP to obtain clarification from Dr. Levy regarding
the period and extent of any disability causally related to the accepted conditions. After such
further development of the case record as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 21, 2016 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded.
Issued: June 22, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Milwaukee, WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)

Docket No. 13-1700
Issued: May 15, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On July 1, 2013 appellant filed a timely appeal of a June 7, 2013 Office of Workers’
Compensation Programs’ (OWCP) decision. The Board docketed the appeal as No. 13-1700.
By its June 7, 2013 decision, OWCP denied appellant’s claim for a schedule award, finding that
he had no ratable impairment of the right upper extremity causally related to his accepted right
shoulder and right arm conditions. 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.
The Board has duly considered the matter and notes that in the case of William A.
Couch,2 the Board held that, when adjudicating a claim, OWCP is obligated to consider all
evidence properly submitted by a claimant and received by OWCP before the final decision is
issued. OWCP stated in its June 7, 2013 decision that appellant had not submitted any evidence
after the February 22, 2013 developmental letter in which it informed him that it required
additional medical evidence in support of his schedule award claim. This was not correct;
1

5 U.S.C. § 8101 et seq.

2

41 ECAB 548 (1990).

appellant submitted numerous medical reports in March and April 2013, including several
reports containing examination findings. While OWCP is not required to list every piece of
evidence submitted to the record, the record is clear that the evidence he submitted in March and
April 2013 was not reviewed, as OWCP specifically stated in its decisions that no additional
evidence was received.
For this reason, the case will be remanded to OWCP to enable it to properly consider all
the evidence submitted prior to the issuance of the June 7, 2013 decision. Following such further
development as OWCP deems necessary, it shall issue an appropriate decision on the merits.
IT IS HEREBY ORDERED THAT the June 7, 2013 decision of the Office of Workers’
Compensation Programs is set aside; the case record is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: May 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2


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

)
)
)
)
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)
)

Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2491
Issued: July 22, 2009

Case Submitted on the Record

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

JURISDICTION
On September 18, 2008 appellant, through her representative, filed a timely appeal from
the June 24, 2008 merit decision of an Office of Workers’ Compensation Programs’ hearing
representative, which denied compensation for a period of wage loss. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s cervical spondylosis at C5-6 and C6-7 is causally related
to her January 6, 2006 employment injury. On appeal, she addressed three medical reports
which she contended stand unrebutted.
FACTUAL HISTORY
On January 6, 2006 appellant, then a 59-year-old manual clerk, sustained a traumatic
injury in the performance of duty while “sticking” flats. The Office accepted her claim for
sprain/strain shoulder/arm unspecified right and for cervicalgia.
Appellant received
compensation for temporary total disability and submitted claims for wage loss.

On March 1, 2006 Dr. Raymond V. Harron, appellant’s neurosurgeon, reported that she
initially presented for evaluation of neck pain, bilateral shoulder pain and bilateral arm pain.
Appellant’s symptoms were mostly on the right but now presented more on the left. She states,
“[T]his has been going on since January 2005 [sic]. [Appellant] reports no accidents or injuries
that could have caused the problem.” On December 8, 2006 Dr. Harron completed a form report
diagnosing a disabling cervical stenosis causing neck and arm pain. With an affirmative mark,
he indicated that this was caused or aggravated by the January 6, 2006 incident at work.
On January 4, 2007 the Office asked appellant for a medical report explaining her
disability for work, a report providing her current diagnosis and explaining how the diagnosis
was related to the January 6, 2006 work injury. In order to receive disability compensation for
any period after December 8, 2006, it requested an explanation from her physician as to why she
was disabled from work.
On January 30, 2007 the Office again asked appellant to submit an explanation from her
physician of why she was disabled for work. Any disability from work due to a condition other
than the accepted right shoulder sprain or cervicalgia required an explanation by her physician.
On February 23, 2007 Dr. Harron responded:
“[Appellant] suffers from neck and bilateral arm pain secondary to cervical
spondylosis at C5-6 and C6-7. This became a disabling factor on January 6,
2006, from what I believe was her stacking flats at work. It is my opinion that her
preexisting diagnosis of cervical spondylosis was aggravated by her work injury.
She is to remain out of work until surgery.”
In a decision dated April 18, 2007, the Office denied appellant’s claim for wage-loss
compensation from December 8, 2006 to March 31, 2007 on the grounds that the medical
evidence was insufficient to support disability for work due to the accepted injury.
Appellant requested an oral hearing before an Office hearing representative, which was
held telephonically on March 12, 2008. After the hearing, the Office received a September 7,
2007 note from Dr. Harron, who wanted to correct an error in an earlier report: “The correct date
[of her injury] was January 2006.” In a December 18, 2007 report, Dr. Harron stated, “[T]here
was no direct accident or injury, but rather accumulated micro-trauma associated with her job
that aggravated her injury. I collected her history on her initial March 1, 2006 visit that she
reported no accidents or injuries.”
In a decision dated June 24, 2008, the Office hearing representative affirmed the denial of
compensation beginning December 8, 2006. The hearing representative found that the medical
evidence demonstrated that the claimed disability was not due to injury of January 6, 2006.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1
1

5 U.S.C. § 8102(a).

2

Disability means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.2
A claimant seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim by the weight of the evidence,3 including that she sustained an
injury in the performance of duty and that any specific condition or disability for work for which
she claims compensation is causally related to that employment injury.4
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence. The claimant must submit a rationalized medical opinion that supports a
causal connection between her current condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury and must explain from a medical perspective how the current
condition is related to the injury.5
ANALYSIS
The Office accepted appellant’s traumatic injury claim for sprain/strain shoulder/arm
unspecified right and for cervicalgia. It paid compensation for wage loss on this basis until
December 8, 2006, when Dr. Harron, the neurosurgeon, diagnosed a disabling cervical spondylosis
at C5-6 and C6-7. As this was not an accepted work-related medical condition, appellant’s
entitlement to continuing compensation for wage loss turns on the sufficiency of Dr. Harron’s
medical opinion that appellant’s January 6, 2006 work activities aggravated her preexisting
cervical spondylosis.
On December 8, 2006 Dr. Harron indicated with an affirmative mark that appellant’s
cervical stenosis at C5-6 and C6-7 was caused or aggravated by the January 6, 2006 incident at
work. The Board has held that, when a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, that opinion has little probative value and is insufficient to
establish causal relationship.6 To discharge her burden of proof, appellant must submit an opinion
from a physician who supports his conclusion with sound medical reasoning. Dr. Harron offered
no medical reasoning in his December 8, 2006 report.
On February 23, 2007 Dr. Harron provided an opinion that appellant’s preexisting
cervical spondylosis at C5-6 and C6-7 was aggravated by stacking flats at work on
January 6, 2006. But this statement, alone offers little information beyond that found in his
December 8, 2006 form report. Dr. Harron did not address the medical reasons for attributing

2

20 C.F.R. § 10.5(f) (1999).

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

6

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

3

appellant’s cervical spondylosis, at least in part, to specific physical activities on
January 6, 2006.
The Board finds that Dr. Harron’s stated conclusion is of diminished probative or
evidentiary value because he failed to support his opinion with sound medical reasoning.
Medical rationale is critical to appellant’s claim. Dr. Harron did not explain the nature of
cervical spondylosis and why, to a reasonable degree of medical certainty, the specific physical
activities appellant performed on January 6, 2006 materially affected her underlying condition.
He did not refer to any clinical findings or diagnostic studies or other evidence to support an
aggravation of her cervical condition. Dr. Harron must also reconcile his statement that stacking
flats on January 6, 2006 aggravated appellant’s cervical spondylosis with his December 18, 2007
statement that there was no direct accident or injury, but rather an accumulation of micro-trauma
associated with her job that aggravated her injury.7 His medical reports of record are not
sufficient to discharge her burden of proof to establish her entitlement to continuing
compensation for wage loss beginning December 8, 2006.
With no rationalized medical opinion to support a causal connection between her cervical
spondylosis and the work activities she performed on January 6, 2006, the Board finds that
appellant has not met her burden of proof. The Board will therefore affirm the Office hearing
representative’s June 24, 2008 decision.
CONCLUSION
The Board finds that the medical opinion evidence is insufficient to establish that
appellant’s cervical spondylosis at C5-6 and C6-7 is causally related to her January 6, 2006
employment injury.

7

The hearing representative advised appellant that, if she wished to make the claim that her repetitive duties over
time caused an injury, she could file such a claim.

4

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2009
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
__________________________________________
)
)
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and
)
)
U.S. POSTAL SERVICE, CIVIC CENTER POST )
OFFICE, San Francisco, CA, Employer
)
__________________________________________ )
G.G., Appellant

Appearances:
Sylvia R. Johnson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-999
Issued: January 28, 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 March 2, 2007 appellant’s representative filed a timely appeal from a March 2, 2006
decision of an Office of Workers’ Compensation Programs’ hearing representative affirming the
denial of her emotional condition claims. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUE -- File Nos. 13-2121319 & 13-2123978
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY -- File No. 13-2121319
On January 10, 2005 appellant, then a 46-year-old window and distribution clerk, filed a
traumatic injury claim alleging that she sustained adjustment disorder with anxiety as a result of
a coworker pushing her into a door while he opened it and shoving her with his shoulder on
December 14, 2004.1 Specifically, she stated that on December 14, 2004 Gary K. Fong, her
1

The Office assigned File No. 13-2121319.

supervisor, requested that she come into his office for a discussion. Mr. Fong received a
telephone call and appellant left to go to the restroom. While she was attempting to close the
door on her return, Mario Palomo, a coworker, “forced the door back open pushing [her] with the
door.” After entering the office, appellant alleged that Mr. Palomo proceeded to shove her with
his shoulder. She also alleged that this was “a culmination of threatening events at work” by
Mr. Palomo which started on November 24, 2004 when Mr. Palomo backed his car into her
parked car in the employee’s parking lot.
The employing establishment controverted the claim. Mr. Fong stated that he had
investigated appellant’s allegations of threats by Mr. Palomo and found that there was no
evidence to support appellant’s allegation. On December 14, 2004 he stated that he called
appellant into his office to discuss her calling the police department. Mr. Fong noted that she left
while he was on the telephone and that Mr. Palomo attempted to come into his office at the same
time that appellant returned. He indicated that appellant “blocked the door and attempted to
close it, there was no contact between the two employees.” “Appellant then called the police
after the incident and the police “determined it was just incidental contact.” Mr. Palomo was
temporarily reassigned to provide a cooling off period.
In a January 6, 2005 report, Dr. Robert Avenson, Ph.D., an licensed psychologist, stated
that appellant was “obviously emotionally distraught” due to her feeling unsafe at work. He
noted November 23, 2004 as the beginning incident. Dr. Avenson stated that appellant
experienced disturbing symptoms as a result of events that have continued to occur regarding this
incident.” Appellant states that she feels unsafe at work as “the perpetrator of the incident
continues to work there” and he has physically and verbally threatened her.
In a letter dated January 24, 2005, the Office informed appellant that the evidence was
insufficient to support her claim. It also informed her that as she had filed a traumatic injury
claim she must submit factual and medical evidence showing the events that occurred on
December 14, 2005 which caused her condition. The Office then informed her of the type of
medical and factual evidence required to support her claim.
On January 25, 2005 Dr. Avenson diagnosed adjustment disorder with anxiety. Under
injury history, he noted that on November 24, 2004 appellant saw Mr. Palomo back into her car.
Mr. Palomo refused to pay for repairing the damages at which point appellant called the police.
The police required Mr. Palomo to provide his insurance information to appellant. On or about
December 1, 2004 Mr. Palomo “came toward [appellant] and threw his shoulder at her,” which
was when appellant “became very fearful of Mr. Palomo.” He allegedly took a picture of
appellant in her car the following morning around 6:15 a.m. and swore at her as he passed her.
Appellant felt threatened and called her supervisors and the police. Following this incident she
“was afraid to work alone with Mr. Palomo” and felt fearful when seeing his car early in the
morning. Appellant informed her supervisor and the postal inspector of her fears, but received
no help. On December 14, 2004 she saw Mr. Palomo’s car as she was coming to work and
“called the police to escort her into work.” When appellant enter her supervisor’s office,
“Mr. Palomo pushed the door open, pushing her along with it” and then shoved his shoulder at
her. Her supervisor, at appellant’s request for help, told Mr. Palomo to leave. Appellant related
feeling chest pains, shaky, shortness of breath and nausea for the remainder of the day.
Mr. Palomo was transferred, appellant returned to work on December 16, 2004 and worked until

2

December 26, 2004. On January 4, 2004 during her vacation, appellant went to pick up her mail
and when she saw Mr. Palomo’s car she began to cry, became fearful and was physically
shaking. Dr. Avenson attributed appellant’s condition to the perceived threats from Mr. Palomo
after he backed his car into hers. He noted that appellant “perceived Mr. Palomo acting in a
threatening manner as he attempted to bump into her with his shoulder, used profanity at her and
did physically shove and bump into her in front of their supervisor.” Dr. Avenson recommended
that appellant be provided a work situation with no possibility of contact with Mr. Palomo and
that she could not work until that condition had been met.
In a January 25, 2005 attending physician’s report (Form CA-20), Dr. Avenson noted
December 14, 2004 as the date of injury and diagnosed adjustment disorder with anxiety. He
attributed the condition to the incidents with Mr. Palomo beginning with his car hitting her car
and ending with his physically bumping into her in front of their supervisor. Dr. Avenson stated
that appellant could not return to work until she is provided a workplace where she does not
encounter Mr. Palomo.
On February 14, 2005 the Office received several witness statements from coworkers
submitted by the employing establishment. In a December 15, 2004 statement, Josephine Leung
reported an interview with Alvarro Matus who reported that there was no verbal and physical
contact. Cristina dela Rosa, in an undated statement, stated that she saw no threats by
Mr. Palomo towards appellant on December 15, 2004. In a December 15, 2004 statement,
Ms. Leung stated that she saw no verbal threats or loud talking by Mr. Palomo towards appellant
over the past few weeks. Salud B. Lacanlale, in a December 14, 2004 statement, related that she
was unable to comment on the incident between appellant and Mr. Palomo as she had not been
present at the time of the argument or incident.
In a February 10, 2005 attending physician’s report, Dr. Avenson noted December 14,
2004 as the date of injury and diagnosed adjustment disorder with anxiety. He attributed the
condition to the incidents with Mr. Palomo beginning with his car hitting her car and ending with
his physically bumping into her in front of their supervisor. Dr. Avenson stated that appellant
could not return to work until she is provided a workplace where she does not encounter
Mr. Palomo.
On March 1, 2005 the Office received additional medical and factual evidence from both
appellant and the employing establishment.
In a December 3, 2004 statement, which was sent on January 19, 2005, Mr. Palomo
related that appellant wrongfully accused him of being a thief on September 20, 2004 and that he
left feeling offended following her stating that she had no proof that he had stolen an exercise
bicycle seat. He related that following this incident more problems arose with appellant telling
him not to park in back of or in front of her parking space. On November 24, 2004 Mr. Palomo
stated that he accidentally and barely touched her car while he was backing out. Appellant
allegedly yelled at him, he apologized, her car was examined “and nothing happened and that
was the end of it.” On November 27, 2004 Mr. Palomo alleged that appellant was waiting for
him in the rain and that she verbally assaulted him and accused him of scratching her license
plate frame on November 24, 2004. At this point appellant demanded that he pay for the
damages and that he said to wait until the sun came out. Once the sun came out, Mr. Palomo

3

went out to check the damage on the license frame and took a photo. Appellant then called the
police, who got his insurance information and gave it to appellant. He related receiving a call
from his insurance company on November 29, 2004 regarding appellant’s accident report.
Mr. Palomo stated that appellant said good morning to him sarcastically on November 30, 2004,
that he did not respond and had not spoken to appellant since November 27, 2004. He related
that his insurance company paid appellant “the amount of $73.50 for this fraudulent claim,” but
appellant continued to be unhappy and began to daily call the police department “to falsely
accused (sic) [him] of using the f… word!” Mr. Palomo related having a discussion with
Mr. Fong regarding the payment of the insurance money and Mr. Fong stating that appellant
“was not a very logical person.” (Emphasis in the original). Mr. Palomo noted that appellant
and he had a meeting with Mr. Fong at which he was told to stay away from appellant, which he
did. The following day appellant allegedly called the police on him. Mr. Palomo stated as a
result of appellant’s constantly calling the police on him, he felt he was on the edge of a nervous
breakdown. He noted that he went to see Mr. Fong when he noticed the door was open, but
appellant “jumped in front of [him] and slammed the door in [his] face” as he was about to enter.
Mr. Palomo related that he then “protected [his] body with the right side of [his] upper arm.” At
this point appellant was screaming and Mr. Fong told him to leave. After she left, Mr. Palomo
returned to Mr. Fong’s office stating that he had medical papers to give him from his doctor
stating he was not to be near appellant.
In a January 19, 2005 report, Dr. Avenson reported seeing appellant for a November 23,
2004 incident. He concluded that appellant was emotionally distraught and “was experiencing
disturbing symptoms as a result of events that have continued to occur regarding this incident.”
By decision dated March 3, 2005, the Office denied appellant’s claim on the grounds that
she had not established fact of injury. It noted that appellant had also filed an occupational
disease claim regarding several incidents with Mr. Palomo including the December 14, 2004
incident. The Office noted that as appellant filed a traumatic injury claim, the focus would be
on the incident which occurred on December 14, 2004. The Office accepted that Mr. Palomo
and appellant had contact on December 14, 2004, but found “the manner in which you allege the
incident took place is not accepted as factual.” It noted that appellant’s version of the incident
was not supported by the evidence. Four coworkers reported no argument or confrontation was
witnessed, “[t]he police reportedly determined this to be incidental contact,” and Mr. Fong
provided a different version of the event. Moreover, Mr. Palomo’s statement provided a
contradictory version of how the incident occurred. Based on the evidence the Office found that
if appellant had not blocked the door while both appellant and Mr. Palomo were entering the
room there would have been no physical contact.
On March 30, 2005 appellant’s representative requested an oral hearing before an Office
hearing representative, which was held on December 20, 2005.2
By decision dated March 2, 2006, the Office hearing representative modified the
March 3, 2005 Office decision finding that based upon appellant’s statements and testimony
regarding “a series of incidents occurring over more than one work shift.” The hearing
2

The record contains evidence from another claimant.

4

representative concluded, therefore, that appellant’s traumatic injury claim “would more
appropriately be considered an occupational disease injury rather than a traumatic injury.” The
hearing representative affirmed the March 3, 2005 Office decision as modified.
FACTUAL HISTORY -- File No. 13-2123978
On January 21, 2005 appellant filed an occupational disease claim alleging that on
November 24, 2005 she first realized her adjustment disorder with anxiety was employment
related.3 In an attached statement, she attributed her condition to a number of incidents
occurring during the period November 24 to January 5, 2005 involving Mr. Palomo, a coworker.
The first incident occurred on November 24, 2004 at approximately 12:22 p.m. when
Mr. Palomo backed into her parked car. Appellant stated that she complained to Mr. Palomo
regarding the damage to her car but he ignored her and left. Following Mr. Palomo’s departure,
she then went to talk with Mr. Matus, Mr. Palomo’s friend and they both went to inspect the
damage to her license plate. On November 27, 2004 appellant spoke with Mr. Palomo about the
damage to her license plate and requested that he replace it. Mr. Palomo allegedly refused
appellant’s request including her request for his insurance information. Appellant then called the
police as instructed by her insurance company. The police discussed the incident with
Mr. Palomo and he provided his insurance information to them. Appellant stated that as a result
of the stress from this incident she left work early. Mr. Palomo then reported the incident to his
insurance company and appellant was paid $70.30 for the damage caused to her car. On
December 1, 2004 appellant alleged that Mr. Palomo “walked past me at work and came toward
me throwing his shoulder out and trying to hit [her]” when she jumped out of the way. She
alleged that on the following day, December 2, 2004, Mr. Palomo parked behind her at
6:15 a.m., went into work, returned a few minutes later and started to take photographs of the
rear end of her car. Mr. Palomo also allegedly walked past appellant and swore at her.
Appellant then called Mr. Fong, her supervisor, regarding this incident. She stated that she was
hesitant about being alone in the employing establishment with Mr. Palomo because she opens
the employing establishment early and it was dark in the morning during the winter months.
After talking with Mr. Fong she tried to call her second level supervisor, Larry Frost, who was
unavailable so she then called the police.
The police arrived and talked with appellant,
Mr. Palomo and Mr. Matus. Appellant was then escorted by the police to her car who watched
her drive off when she left that day. She alleged that she returned to work on December 4, 2004
and went into Mr. Fong’s office for privacy. As appellant was shutting the door, Mr. Palomo
allegedly burst into the office while she was talking with her representative. She stated that she
informed her representative on the speaker telephone that Mr. Palomo was in the room. At that
point Mr. Palomo left. On December 7, 2004 appellant noted that Mr. Palomo’s car was in the
parking lot and she felt afraid so she called her supervisor, who did not respond. She stated that
she “waited for [six] hours then went home.” The next incident occurred on December 10, 2004
when appellant saw the entrance to the employee parking lot was blocked by two mattresses and
Mr. Palomo’s car was parked on the street. “She called the postal police who removed the
mattresses and walked her into work. On December 14, 2004 appellant stated that she requested
the police escort her into work when she arrived at 6:00 a.m. They escorted her in and talked
with Mr. Palomo. Later that morning, appellant’s supervisor requested that she come into his
3

The Office assigned File No. 13-2123978.

5

office for a discussion. Mr. Fong received a telephone call and appellant left to go to the
restroom. While appellant was attempting to close the door on her return, Mr. Palomo “followed
[her] and pushed the door open and [her] with it.” Mr. Palomo then allegedly shoved his right
shoulder at appellant. As a result of this incident appellant related feeling a stabbing pain in her
neck, became short of breath and nauseous and went home sick. Mr. Fong then reassigned
Mr. Palomo to another work area so appellant returned to work on December 16, 2004.
Appellant noted that she was on vacation for the period December 26, 2004 to January 7, 2005,
but came into the employing establishment on January 5, 2005. She stated that she asked
Mr. Fong to forward her mail from her post office box as her mail had been mishandled in the
past. Mr. Fong refused her request even though appellant alleged that he has done this for
“customers all the time.” Upon arriving at the employing establishment on January 4, 2005 to
pick up her mail, she saw appellant’s car parked outside. At this point appellant alleged that she
“broke down and cried” and “shook all over.”
The employing establishment submitted statements by Ms. Lacanlale, Mr. Matus,
Ms. dela Rosa and Ms. Leung, coworkers regarding the December 14, 2004 alleged incident with
Mr. Palomo.
In a January 19, 2005 report, Dr. Avenson noted that an employment incident occurred
about November 21, 2004 between appellant and Mr. Palomo. He reported that appellant felt
unsafe at work with Mr. Palomo present and continued to have anxiety as a result of her fear of
Mr. Palomo. Dr. Avenson indicated that he would release appellant to return to work when the
employing establishment provided her with a safe working environment that would prevent
contact with Mr. Palomo.
In a letter dated February 16, 2005, the employing establishment informed the Office that
Mr. Palomo had been temporarily reassigned to another workstation and that there was no
abusive work environment.
On March 14 and 15, 2005 the Office received additional evidence including reports by
Dr. Avenson, a statement by appellant and letters dated December 9 and 14, 2004 from Bob
Williamson, General President, American Postal Workers Union and police reports responding
to appellant’s calls on December 2 and 14, 2004 regarding Mr. Palomo.
In a December 2, 2004 incident report, L. Mitchell, a police officer, reported being called
by appellant for a suspicious occurrence with Mr. Palomo as the suspect. He noted that appellant
called the police because Mr. Palomo allegedly swore at her as he went by. Mr. Palomo denied
yelling at appellant and stated that he would avoid her. In a follow up incident the police
responded to “an alleged ongoing workplace disagreement.” Appellant stated that Mr. Palomo
was angry at her and yelled at her and that she was afraid of him. Mr. Palomo denied appellant’s
allegations. The police reported interviewing Mr. Matus who works with Mr. Palomo.
Mr. Matus stated: “[appellant] and Mr. Palomo do not like each other but that he has not seen
[Mr.] Palomo (sic) verbally abuse [her].” A police incident report noted that appellant alleged
that Mr. Palomo pushed her that day, December 14, 2004.
Appellant provided a statement for the police regarding the December 2, 2004 incident.
She related that around 6:15 a.m. she was in her car when Mr. Palomo parked behind her.

6

Mr. Palomo went into the employing establishment and shortly returned and started taking
pictures of her. He also swore at her. Appellant noted that she then called her supervisor,
Mr. Fong, and the police to report the incident.
In a December 9, 2004 letter, Mr. Williamson wrote to Mr. Fong regarding the “very
tense and unhealthy situation” between appellant and Mr. Palomo. He noted that he agreed with
appellant that this was “not a conflict of a minor auto[mobile] mishap or insurance claim,” but
that was when Mr. Palomo’s aggression began. Mr. Williamson noted that Mr. Palomo’s
credibility was at issue as he “at first denied driving his vehicle into [appellant]’s parked vehicle”
and only agreed to provide insurance information after a policeman had reviewed the video of
the incident. Next, Mr. Williamson stated that appellant “has experienced a very escalated level
of hostility from Mr. Palomo on subsequent days” including an incident on December 1, 2004
when he “came right towards her and threw out his shoulder towards her, missing her only
because she was alert enough to dodge contact.” Mr. Williamson then noted that Mr. Palomo
took a picture of appellant sitting in her car the following day and swore at her. As a result of
these incidents, he stated that appellant was “now afraid to step out of her car until she can assure
he is not in the vicinity.” In concluding, Mr. Williamson stated that appellant and others were
aware “that Mr. Palomo has a lengthy history of ‘anger management’ and self-control problems.”
He then recommended placing Mr. Palomo in a different location from appellant.
In a December 14, 2004 letter, Mr. Williamson detailed the December 14, 2004 incident
in Mr. Fong’s office. He noted that appellant saw Mr. Palomo following her into Mr. Fong’s
office and that she had her hand on the door. Appellant informed Mr. Williamson that
“Mr. Palomo forced his way through the door and, with his shoulder pushed [her] out of his
way.” Mr. Williamson reiterated that Mr. Palomo needs to be temporarily moved to a different
location from appellant.
In a January 25, 2005 report, Dr. Avenson diagnosed adjustment disorder with anxiety.
Under injury history, he noted that on November 24, 2004 appellant saw Mr. Palomo back into
her car. Mr. Palomo refused to pay for repairing the damages at which point appellant called the
police, who got him to provide his insurance information to appellant. On or about December 1,
2004 he “came toward [appellant] and threw his shoulder at her,” which was when she “became
very fearful of [him].” Mr. Palomo allegedly took a picture of appellant in her car the following
morning around 6:15 a.m. and swore at her as he passed her. Appellant felt threatened and called
her supervisor and the police. Following this incident she “was afraid to work alone with
Mr. Palomo” and felt fearful when seeing his car early in the morning. Appellant informed her
supervisor and the postal inspector of her fears, but received no help. On December 14, 2004 she
saw Mr. Palomo’s car as she was coming to work and “called the police to escort her into work.”
While entering her supervisor’s office, “Mr. Palomo pushed the door open, pushing her along
with it” and then shoved his shoulder at her. Her supervisor, at appellant’s request for help, told
Mr. Palomo to leave. Appellant related feeling chest pains, shaky, shortness of breath and
nausea for the remainder of the day. Mr. Palomo was transferred, appellant returned to work on
December 16, 2004 and worked until December 26, 2004. On January 4, 2004 during her
vacation, appellant went to pick up her mail and when she saw Mr. Palomo’s car she began
crying, became fearful and was physically shaking. Dr. Avenson attributed appellant’s condition
to the perceived threats from Mr. Palomo after he backed his car into hers. He noted that
appellant “perceived Mr. Palomo acting in a threatening manner as he attempted to bump into

7

her with his shoulder, used profanity at her and did physically shove and bump into her in front
of their supervisor.” Dr. Avenson recommended appellant be provided a work situation with no
possibility of contact with Mr. Palomo and that she could not work until that condition had been
met.
In a February 10, 2005 attending physician’s report Form CA-20, Dr. Avenson noted
December 14, 2004 as the date of injury and diagnosed adjustment disorder with anxiety. He
attributed the condition to the incidents with Mr. Palomo beginning with his car hitting
appellant’s car and ending with his physically bumping into her in front of their supervisor.
Dr. Avenson stated that appellant could not return to work until she is provided a workplace
where she does not encounter Mr. Palomo.
On March 15, 2005 Dr. Avenson reviewed and approved a temporary limited-duty
position and released her to return to work.
By decision dated July 12, 2005, the Office denied appellant’s January 21, 2005 claim.
In a letter dated July 15, 2005, appellant’s representative requested an oral hearing before
an Office hearing representative which was held on December 20, 2005. At the hearing
appellant submitted pictures, a copy of a telephone bill and a copy of insurance claim. The
hearing representative heard testimony from appellant, Mr. Williamson and Mr. Fong. At the
conclusion of the hearing, the hearing representative stated that she would forward a copy of
Mr. Palomo’s statement to appellant’s representative for her review.
On November 17, 2005 the Office received a report dated December 3, 2004, which was
sent on January 19, 2005 by Mr. Palomo.
In a report dated February 17, 2005, received by the Office on February 23, 2006,
Dr. David Rice, PhD, licensed psychologist diagnosed work-related adjustment disorder with
anxiety based upon a review of the medical evidence, the Office decisions and hearing transcript.
Dr. Rice reported November 24, 2004 was the beginning of the incidents involving appellant’s
coworkers. He attributed her condition to Mr. Palomo’s behavior towards appellant beginning
November 24, 2004. Dr. Rice indicated his agreement with Dr. Avenson that appellant’s
condition had been caused by her employment.
By decision dated March 2, 2006, the Office hearing representative affirmed the July 12,
2005 denial of appellant’s January 21, 2005 occupational disease claim.
LEGAL PRECEDENT -- File Nos. 13-2121319 & 13-2123978
To establish that appellant sustained an emotional condition causally related to factors of
her federal employment, she must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric

8

disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition
is causally related to the identified compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’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. Disability is not compensable, however, 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 hold a particular position.5 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.6 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.7
As a general rule, an employee’s emotional reaction to administrative or personnel
actions taken by the employing establishment is not covered because such matters pertain to
procedures and requirements of the employer and are not directly related to the work required of
the employee.8 An administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment.9
An employee’s frustration from not being permitted to work in a particular environment or to
hold a particular position is not compensable.10 Similarly, an employee’s dissatisfaction with
perceived poor management is not compensable under the Federal Employees’ Compensation
Act.11

4

See V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007); Kathleen D. Walker, 42 ECAB
603 (1991).
5

Lillian Cutler, 28 ECAB 125 (1976).

6

See Kathleen D. Walker, supra note 4.

7

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

8

Felix Flecha, 52 ECAB 268 (2001).

9

Kim Nguyen, 53 ECAB 127 (2001).

10

Barbara J. Latham, 53 ECAB 316 (2002).

11

Id.

9

For harassment or discrimination 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.12 Mere perceptions of harassment or discrimination are not compensable under the Act.13
ANALYSIS -- File No. 13-2121319
On appeal, appellant’s representative contends that the Office hearing representative
denied her the opportunity to identify and clarify evidence in the record. She alleged that the
hearing representative failed to send her a copy of Mr. Palomo’s statement as requested at the
hearing. Next, appellant contends that the hearing representative improperly denied her request
to question Mr. Fong regarding the employee statements as they appeared to be written by the
same person. The Board finds that appellant has not submitted any evidence supporting her
allegation that Mr. Fong wrote the witness statements. As to appellant’s allegation regarding
Mr. Palomo’s statement, the hearing representative stated that a copy of the statement would be
sent to her. There is no evidence that the statement was not mailed. Moreover, the hearing
representative did not base her findings on Mr. Palomo’s statement. She relied upon Mr. Fong’s
statement, as a witness to the December 14, 2004 incident. In addition appellant submitted no
witness statements supporting her allegations regarding Mr. Palomo. Thus, the Board finds
appellant’s arguments regarding the sending of Mr. Palomo’s statement and the allegation
regarding the witness statements unpersuasive.
The Board notes that the Office hearing representative properly adjudicated appellant’s
December 14, 2004 traumatic injury claim, which she filed on January 10, 2005, as an
occupational illness claim. In an addendum to her traumatic injury claim form, appellant alleged
that the December 14, 2004 incident was “a culmination of threatening incidents going back to
November 24, 2004.” Moreover, the evidence submitted by appellant and her testimony support
the finding that she was alleging a series of incidents occurring over more than one work shift.
Thus, her claim is that of an occupational illness and not a traumatic injury.14 Therefore, the
question to be resolved is whether appellant has established a compensable factor of
employment.
On January 10, 2005 appellant, then a 46-year-old window and distribution clerk, filed a
traumatic injury claim alleging that she sustained adjustment disorder with anxiety as a result of
a coworker pushing her into a door while he opened it and shoving her with his shoulder on
December 14, 2004.15 Specifically, she stated that on December 14, 2004 Mr. Fong, her
supervisor, requested that she come into his office for a discussion. Mr. Fong received a
telephone call and appellant left to go to the restroom. While appellant was attempting to close
the door on her return, Mr. Palomo, a coworker, “forced the door back open pushing [her] with
the door.” After entering the office, she alleged that Mr. Palomo proceeded to shove her with his
12

V.W., supra note 4.

13

L.S., 58 ECAB ___ (Docket No. 06-1808, issued December 29, 2006); Reco Roncaglione, 52 ECAB
454 (2001).
14

See 20 C.F.R. § 10.5(ee) (traumatic injury defined); 20 C.F.R. § 10.5(q) (occupational disease defined).

15

This was assigned file number 13-2121319.

10

shoulder. Appellant also alleged that this was “a culmination of threatening events at work” by
Mr. Palomo which started on November 24, 2004 when he backed his car into her parked car in
the employee’s parking lot.
Appellant attributed her emotional condition to a number of incidents involving
Mr. Palomo which began on November 24, 2004 when he backed his car into her car in the
employee parking lot and subsequent threatening behavior by Mr. Palomo. There is no evidence
that she was in the car at the time Mr. Palomo backed into her car. Moreover, appellant has not
shown how Mr. Palomo backing into her car and her reaction to the reimbursement she received
from the insurance company was related to her employment duties. Thus, the Board finds that
appellant has not established a compensable factor.
Appellant alleged that following the November 24, 2004 incident there were a number of
“threatening events at work.” With regard to emotional condition claims arising under the Act,
the term harassment as applied by the Board is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by coworkers. To the extent
that disputes and incidents alleged as constituting harassment by coworkers are established as
occurring and arising from appellant’s performance of her regular duties, these could constitute a
compensable employment factor.16 However, for harassment and discrimination to give rise to a
compensable disability under the Act, there must be evidence that harassment did in fact occur.
Mere perceptions of harassment are not compensable under the Act.17 In this case, appellant has
not submitted any evidence or identified specific incidents of threatening to establish her claim.18
Her unsupported allegations alone are insufficient to establish a factual basis for her claim.19
The Board finds that appellant has not established a compensable factor of employment under
the Act with respect to his allegations of threatening behavior by Mr. Palomo following the
November 24, 2004 incident.
Appellant attributed her emotional condition to an incident which occurred on
December 14, 2004 when her supervisor requested she come into his office for a discussion.
While she was attempting to close the door on her return, Mr. Palomo “followed [her] and
pushed the door open and [her] with it.” Mr. Palomo then allegedly shoved his shoulder at
appellant. Mr. Fong initially stated that Mr. Palomo attempted to enter his office at the same
time as appellant, but she blocked the door and tried to close it and there was no contact between
the two employees. The evidence supports that appellant and Mr. Palomo were both attempting
to enter Mr. Fong’s office at the same time and that she blocked the door and attempted to shut it
on Mr. Palomo.

16

See Charles D. Edwards, 55 ECAB 259 (2004).

17

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

18

See Joel Parker, Jr., 43 ECAB 220 (1991) (finding that a claimant must substantiate allegations of harassment
or discrimination with probative and reliable evidence).
19

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

11

Based on the evidence of record, appellant has not substantiated a compensable work
factor. Since she has not established a compensable work factor, the Board will not address the
medical evidence.20
CONCLUSION -- File No. 13-2121319
The Board finds that appellant has not established an emotional condition in the
performance of duty for the claim filed on January 10, 2005.
ANALYSIS -- File No. 13-2123978
Appellant alleged a number of incidents involving Mr. Palomo in December 2004. To
the extent that she generally alleged verbal or physical threats by Mr. Palomo in December 2004,
the Board has recognized the compensability of physical threats or verbal abuse in certain
circumstances. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under the Act.21 On December 1, 2004 appellant alleged that Mr. Palomo
“walked past me at work and came toward me throwing his shoulder out and trying to hit [her]”
when she jumped out of the way. Mr. Williamson in his statement reiterates appellant’s version
of the event. He, however, was not present and did not witness the alleged event.
Mr. Williamson was merely restating appellant’s version of the events. Appellant submitted no
witness statements or other factual evidence to substantiate this allegation. As she has not
submitted any evidence supporting her allegation of verbal abuse on December 1, 2004, she has
not established a compensable factor of employment.
Appellant also alleged that Mr. Palomo on the following day, December 2, 2004, parked
behind her at 6:15 a.m., went into work, returned a few minutes later and started to take pictures
of the rear end of her car . He also allegedly walked past appellant and swore at her. At the
hearing appellant submitted a copy of a picture she allegedly took of him taking a picture of her.
The Board notes that while appellant stated that the picture she took was of Mr. Palomo taking a
picture of her, no person can be identified in the picture. The picture shows the back of a car
with a white dot in the middle of the back window. Assuming arguendo, that the picture in
question does show Mr. Palomo photographing appellant in her car, she has not shown how this
is related to the performance of her work duties. He allegedly swore at her as he passed her.
Appellant then called Mr. Fong, her supervisor, regarding this incident. After talking to
Mr. Fong she tried to call her second level supervisor, Mr. Frost, who was unavailable so she
called the police, who arrived and talked with appellant, Mr. Palomo and Mr. Matus.
Appellant’s mere perception that Mr. Palomo’s taking a picture was threatening behavior did not
establish that a threat was made against her.22 She did not submit any witness statements to
support her allegation. While appellant did call the police, there is no report by the police

20

D.L., 58 ECAB ____ (Docket No. 06-2018, issued December 12, 2006); T.G., 58 ECAB ___ (Docket No. 061411, issued November 28, 2006); Margaret S. Krzycki, 43 ECAB 496 (1992).
21

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

22

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

12

finding that Mr. Palomo threatened her. Thus, she has not established a compensable factor of
employment with the December 2, 2004 incident.
Appellant alleged that she returned to work on December 4, 2004 and went into
Mr. Fong’s office for privacy. As she was shutting the door, Mr. Palomo allegedly burst into the
office while she was talking and she informed her representative on the speaker telephone that
Mr. Palomo was in the room. While her representative heard a noise on the telephone, there is
no other witness statement to support her allegation that Mr. Palomo burst into the room. Thus,
appellant has not established a compensable factor of employment.
On December 7, 2004 appellant noted Mr. Palomo’s car was in the parking lot and she
felt afraid so she called her supervisor, who did not respond. Appellant stated that she “waited
for [six] hours then went home.” The next incident occurred on December 10, 2004 when she
saw the entrance to the employee parking lot was blocked by two mattresses and Mr. Palomo’s
car was parked on the street. Appellant called the postal police who removed the mattresses and
walked her into work. However, she has not provided any evidence showing that Mr. Palomo
placed the two mattresses to block the entrance to the parking lot or that she had any contact with
Mr. Palomo on December 7, 2004. As appellant has not submitted any probative evidence to
support her claim, she has not established a compensable factor of employment with respect to
these two incidents.
Next appellant alleged that on December 14, 2004 she stated that she requested the police
escort her into work when she arrived at 6:00 a.m. They escorted her in and talked with
Mr. Palomo. Later that morning, her supervisor requested that she come into his office for a
discussion. While she was attempting to close the door on her return, Mr. Palomo “followed
[her] and pushed the door open and [her] with it.” Mr. Palomo then allegedly shoved his
shoulder at appellant. Mr. Fong initially stated that Mr. Palomo attempted to enter his office at
the same time as appellant, but she blocked the door and tried to close it and there was no contact
between the two employees. The evidence supports that appellant and Mr. Palomo were
attempting to enter Mr. Fong’s office at the same time and that she blocked the door and
attempted to shut it on Mr. Palomo.
Appellant allegedly requested Mr. Fong to forward her mail from her post office box as
her mail had been mishandled in the past. He refused her request even though he allegedly had
done this for “customers all the time.” The Board has found that an administrative or personnel
matter will be considered to be an employment factor where the evidence discloses error or
abuse on the part of the employing establishment.23 No evidence was presented as to error or
abuse by the employing establishment in this matter. The mere fact that appellant’s supervisor
refused her request to forward her mail from her post office box does not establish error or abuse.
Appellant has submitted no evidence to show that the employing establishment erred in an
administrative matter and thus has not established a compensable employment factor.
Appellant also alleged that upon arriving at the employing establishment on January 4,
2005 to pick up her mail, she saw appellant’s car parked outside. At this point she alleged that
she “broke down and cried” and “shook all over.” As noted above, appellant was on leave on
23

C.S., 58 ECAB ___ (Docket No. 06-1583, issued November 6, 2006).

13

January 4, 2005 when she arrived at the employing establishment to pick up her mail. Moreover,
she did not encounter Mr. Palomo, but merely saw that his car was parked outside. As appellant
was not scheduled to work on January 4, 2005 she has not established a compensable factor of
employment.
CONCLUSION -- File No. 13-2123978
The Board finds that appellant has not established an emotional condition in the
performance of duty for the claim filed on January 21, 2005.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated March 2, 2006 is affirmed.
Issued: January 28, 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

14