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

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

Docket No. 13-1205
Issued: December 13, 2013

Case Submitted on the Record

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

JURISDICTION
On April 22, 2013 appellant filed a timely appeal from a March 22, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
February 3, 2013.
FACTUAL HISTORY
Appellant, a 54-year-old mail handler, filed a claim for benefits on February 4, 2013
alleging that she injured her right wrist, right knee and lower back when she fell on
February 3, 2013.
1

5 U.S.C. § 8101 et seq.

In an attending physician’s report dated February 4, 2013, it was listed that appellant
sustained a sprained left wrist, contusion of the right knee and lower back strain on
February 3, 2013. The form was signed by Dusty Meeks, a registered nurse. Appellant also
submitted a February 11, 2013 Texas Workers’ Compensation status report, signed by a nurse
practitioner. It noted that she sustained a left wrist, contusion of the right knee and lower back
strain on February 3, 2013.
On February 14, 2013 OWCP advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked her
to submit a comprehensive medical report from a treating physician describing her symptoms
and the medical reasons for her condition. The physician was to state an opinion as to whether
her claimed condition was causally related to her federal employment and a diagnosis. OWCP
requested that appellant submit the additional evidence within 30 days.
Appellant submitted a February 26, 2013 form nurse report from Harris Methodist
Occupational Health, which advised that she sustained a right wrist sprain, lumbar strain and
contusion/strain of her right knee, but did not indicate the date of injury. She underwent x-rays
of her right wrist and lumbar spine on February 26, 2013 which showed no acute bony
abnormality. In a Form CA-17 report dated February 26, 2013, it was indicated that appellant
had sustained a contusion/strain of her right knee and outlined work restrictions. The form
contains an illegible signature from a physician but did not list the date of injury.
The record reflects that on August 13, 2012, prior to the claimed injury, appellant
underwent surgery for excision of a ganglion cyst and extensor tenosynovectomy of her right
wrist. The procedure was performed by Dr. John S. Badylak, a specialist in orthopedic surgery.
By decision dated March 22, 2013, OWCP accepted that the February 3, 2013 incident
occurred as alleged. It denied appellant’s claim finding that she failed to submit sufficient medical
evidence from a physician on the issue of causal relation.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
OWCP accepted that appellant fell on her wrists on February 3, 2013. The question of
whether an employment incident caused a personal injury can only be established by probative
medical evidence.10 Appellant has not submitted rationalized, probative medical evidence to
establish that the February 3, 2013 employment incident caused a diagnosed injury.
Appellant stated on her Form CA-1 that she injured her right wrist, right knee and low
back when she fell on February 3, 2013. She did not submit evidence from a physician that
reflects an accurate history of the accepted incident, a firm medical diagnosis of her condition or
addresses how her condition was causally related to the February 3, 2013 work incident. The
record reflects that appellant underwent surgery on August 13, 2012, prior to the accepted
incident. None of the form reports, diagnostic test results or hospital treatment records provide a
physician’s opinion pertaining to causal relationship. Therefore, appellant failed to provide
5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

Carlone, supra note 5.

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medical evidence that explains how the work incident of February 3, 2013 caused or contributed
to the claimed right wrist, right knee or low back conditions.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.11 The medical reports of record do not address whether she
injured her right wrist, right knee or low back by the February 3, 2013 work incident.
Appellant submitted reports and notes signed by nurse practitioners. Healthcare
providers such as a nurse, acupuncturist, physician’s assistant and physical therapist are not
defined as a “physician” under FECA. These reports do not constitute competent medical
evidence to establish a medical condition, disability or causal relationship.12 These reports are
insufficient to satisfy appellant’s burden.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. The Board finds that she did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained an injury in the
performance of duty on February 3, 2013.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

12

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

4

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 13, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Baltimore, MD, Employer
__________________________________________

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

Docket No. 08-1946
Issued: January 22, 2009

Oral Argument December 9, 2008

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

JURISDICTION
On July 7, 2008, appellant timely appealed the April 7, 2008 nonmerit decision of the
Office of Workers’ Compensation Programs, which denied her December 14, 2007 request for
reconsideration. The most recent merit decision issued by the Office is dated March 27, 1996.
Because appellant filed the current appeal more than a year after the latest merit decision, the
Board does not have jurisdiction over the merits of the claim.1 Therefore, the only decision
properly before the Board is the Office’s April 7, 2008 denial of reconsideration.
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for merit
review under 5 U.S.C. § 8128(a).

1

20 C.F.R. §§ 501.2(c), 501.3(d) (2008).

FACTUAL HISTORY
Appellant, a 72-year-old former psychologist, filed an occupational disease claim for
allergies, rhinitis and chemical sensitivities, which reportedly arose on or about March 15, 1989.
She also claimed to have experienced a severe respiratory attack with spasms, which she later
identified as hyperactive airways disease. Appellant attributed her condition to exposure to dust,
mold, fungi, mercury and animal dander in her laboratory. She also alleged there was a stressrelated component to her physical ailments. Appellant last worked on February 14, 1990, and
she voluntarily resigned effective May 15, 1990.2 She filed her occupational disease claim more
than a year later on June 17, 1991.
The Office denied appellant’s claim on January 16, 1992 because she failed to establish
fact of injury.3 Appellant requested an oral hearing and she submitted additional factual
information and medical evidence. By decision dated April 12, 1993, the Branch of Hearings &
Review affirmed the previous denial, albeit for a different reason. The hearing representative
found that appellant was exposed to mercury vapors in the workplace. Additionally, there was
evidence of occupational exposure to both dog and monkey feces, hair and dander. Appellant,
however, did not substantiate her alleged exposure to mold. As to the alleged stress-related
component of her claimed injuries, the hearing representative found that appellant established at
least one compensable employment factor.4 But while appellant had established most of her
alleged employment exposure, her claim was denied because the medical evidence did not
adequately demonstrate a causal relationship between the accepted employment exposure and
appellant’s claimed conditions.5 Due to an incorrect address provided by appellant, she did not

2

Coincidentally, in the months preceding her work stoppage appellant had performance issues and was rated
unsatisfactory by her employer. A performance improvement plan had been implemented, and in February 1990 the
employing establishment proposed to remove appellant from her position because of poor performance.
3

A claimant seeking benefits under the Federal Employees’ Compensation Act, 5 U.S.C. §§ 8101-8193 (2000),
has the burden of establishing the essential elements of her claim by the weight of the reliable, probative and
substantial evidence, including that an injury was sustained in the performance of duty as alleged and that any
specific condition or disability claimed is causally related to the employment injury. 20 C.F.R. § 10.115(e), (f); see
Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). To establish that an injury was sustained in the performance of
duty, a claimant must submit: (1) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; (2) a factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified by the claimant.
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
4

The hearing representative found that appellant was obliged to work in the monkey laboratory on January 31
and February 2, 1990 despite her physician’s recommendation to the contrary.
5

According to the hearing representative, appellant failed to “supply medical evidence in which a physician
displays knowledge of the employment factors to which the claimant was exposed, and provides a definitive
diagnosis and opinion on causal relationship supported by medical rationale between such diagnosis and the
employment factors described.”

2

receive a copy of the hearing representative’s April 12, 1993 decision until approximately 18
months after it was initially issued.6
Appellant requested reconsideration on January 2, 1996. The Office reviewed appellant’s
claim on the merits and denied modification by decision dated March 27, 1996.7 Within a year’s
time, appellant again requested reconsideration; however, she did not submit any additional
medical evidence with her March 26, 1997 request for reconsideration. In a decision dated
August 17, 1998, the Office found that appellant’s March 26, 1997 request for reconsideration
was insufficient to warrant modification of the March 27, 1996 decision. It indicated that the
evidence submitted in support of the application was of a “repetitious and cumulative nature....”8
Over the next several years appellant contacted the Office on numerous occasions either
directly or through various congressional representatives. On more than one occasion the Office
advised appellant of her appeal rights. In several of her letters appellant claimed not to have
received the Office’s August 17, 1998 decision, which the Office purportedly sent to appellant’s
old address on Park Avenue, Baltimore, MD.9 Despite the frequent exchange of correspondence
with the Office, appellant did not formally request reconsideration until December 14, 2007. Her
latest request for reconsideration did not include any new medical evidence.
By decision dated April 7, 2008, the Office denied appellant’s December 14, 2007
request for reconsideration. The Office indicated, among other things, that the last merit
decision was issued March 27, 1996, and therefore, appellant’s December 14, 2007 request was
untimely.10

6

The April 12, 1993 decision was returned to the Branch of Hearing & Review because of an incorrect street
address. When appellant filed her claim in June 1991 she claimed she resided at a specific address on W. 47th Street,
Norfolk, VA. In a letter dated April 9, 1992, appellant advised the Branch of Hearings & Review of her “change of
home address, effective immediately.” She listed her then-current address.” However, at her January 15, 1993
hearing appellant testified that she resided at “West 49th Street.” The April 12, 1993 decision was mailed to the
“West 49th Street” address. On October 2, 1995 another copy of the decision was dispatched to appellant’s address
at West 47th Street, which she later acknowledged receiving.
7

The Office acknowledged that because of a mailing error appellant did not receive the April 12, 1993 decision
until early October 1995. Consequently, the Office considered “October 2, 1995” as the date of the Office decision
that was the subject of appellant’s January 2, 1996 request for reconsideration. The Office reviewed the merits of
appellant’s claim and concluded that the additional information she submitted was “both cumulative and immaterial
in nature.” The March 27, 1996 merit decision was sent to appellant’s address of record: at West 47th Street,
Norfolk, VA 23508.
8

The August 17, 1998 decision purports to be a review of the merits, however, the Office’s 1-page decision did
not include any type of analysis that even arguably resembles a review of the merits of appellant’s claim. The
Office mailed the August 17, 1998 nonmerit decision to appellant’s then-current address of record: at West 47th
Street, Norfolk, VA 23508.
9

She apparently believed the August 17, 1998 decision was misdirected because of a February 21, 2001 letter the
Office sent to her previous address on Park Avenue, Baltimore, MD 21201.
10

The Office also acknowledged that the August 17, 1998 decision was a denial of reconsideration, and
appellant’s only avenue of review for that decision was an appeal to the Board.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act does not entitle a claimant
to a review of an Office decision as a matter of right.11 The Office has discretionary authority in
this regard and it has imposed certain limitations in exercising its authority.12 One such
limitation is that the application for reconsideration must be sent within one year of the date of
the Office decision for which review is sought.13 When a request for reconsideration is untimely,
the Office will undertake a limited review to determine whether the application presents “clear
evidence of error” on the part of the Office in its “most recent merit decision.”14
ANALYSIS
Appellant’s latest request for reconsideration was dated December 14, 2007, which is
more than a year after the Office’s March 27, 1996 merit decision. Appellant had previously
requested reconsideration on March 26, 1997, however, her request was denied on
August 17, 1998.15 As this was a nonmerit decision, it did not extend the one-year timeframe for
requesting reconsideration.16 Because appellant’s December 14, 2007 request was untimely she
must demonstrate “clear evidence of error” on the part of the Office in denying her occupational
disease claim.17

11

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
12

20 C.F.R. § 10.607.

13

20 C.F.R. § 10.607(a).

14

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by the Office. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise and explicit and it must be apparent on its face that the Office committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of the Office’s
decision is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The
evidence submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish
a clear procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s decision. Thankamma
Mathews, 44 ECAB 765, 770 (1993).
15

Appellant claimed not to have received this decision. However, the record indicates that the August 17, 1998
decision was properly mailed to appellant’s then-current address of record: at West 47th Street, Norfolk, VA 23508.
In the absence of evidence to the contrary, it is presumed that a notice mailed in the ordinary course of business was
received in due course by the intended recipient. Kenneth E. Harris, 54 ECAB 502, 505 (2003). This presumption
is commonly referred to as the “mailbox rule.” Id. It arises when the record reflects that the notice was properly
addressed and duly mailed. Id. There is nothing in the record to support appellant’s contention that the August 17,
1998 decision was sent to her former address at Park Avenue, Baltimore, MD.
16

As the Office correctly advised in its February 21, 2001 correspondence and in the April 7, 2008 decision,
appellant’s only avenue of review for the August 17, 1998 nonmerit decision was an appeal before the Board. 20
C.F.R. § 10.608(b).
17

20 C.F.R. § 10.607(b).

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The relevant issue is whether a medical condition arose from appellant’s accepted
employment exposure. To establish clear evidence of error, appellant must submit evidence
relevant to the issue that was decided by the Office.18 But rather than address the noted
deficiencies in the medical evidence, she continues to raise decades-old allegations of fraud,
coercion and lack of cooperation on the part of her former employer. At oral argument appellant
claimed her employer was less than forthright in its disclosures about mercury exposure in the
primate laboratory where she worked. She also indicated that she was coerced into working in
the laboratory despite her physician’s recommendation to avoid further exposure. Lastly,
appellant indicated that her former employer would not permit a full battery of pulmonary testing
as requested by her treating physician. She believes that the employing establishment’s actions
somehow impeded her ability to meet her burden of proof. This is essentially the same litany of
arguments appellant has raised since the inception of her claim. The hearing representative was
privy to these arguments in 1993 and appellant reiterated her concerns in subsequent
reconsideration requests. While these particular matters are clearly important to appellant, they
are not at all relevant to the current posture of her occupational disease claim. The Office did not
deny appellant’s claim for any reasons associated with the above-mentioned allegations.
More than 15 years ago the hearing representative reviewed the relevant medical
evidence of record and found it insufficient to establish a causal relationship between appellant’s
claimed conditions and her accepted employment exposure. Since that time appellant has not
submitted any additional medical evidence to overcome the noted deficiencies in the record.
Moreover, appellant has not presented any additional facts or legal argument indicating or even
suggesting that the Office’s review of the medical evidence was faulty. Again, the issue is not
the employing establishment’s purported malfeasance towards appellant. The issue is causal
relationship, which in this instance can only be resolved by submitting competent medical
evidence.19 But instead of supplementing the medical record, appellant continues to rehash
issues of little or no consequence to the adjudication of her workers’ compensation claim. The
Board finds that appellant has not demonstrated clear evidence of error. As such, there is no
justification for further merit review. Accordingly, the Office properly declined to reopen
appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
Appellant’s December 14, 2007 request for reconsideration was untimely and she failed
to demonstrate clear evidence of error. Accordingly, she is not entitled to further merit review.

18

Dean D. Beets, supra note 14.

19

Causal relationship is a medical question that can generally be resolved only by rationalized medical opinion
evidence. See Robert G. Morris, 48 ECAB 238 (1996). 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 must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, supra note 3.
Additionally, in order to be considered rationalized; the opinion must be expressed in terms of a reasonable degree
of medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between
the diagnosed condition and appellant’s specific employment factors. Id.

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ORDER
IT IS HEREBY ORDERED THAT the April 7, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Washington DC, Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0844
Issued: September 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 4, 2015 appellant, through counsel, filed a timely appeal of an October 27,
2014 merit decision of Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
On appeal counsel argued that appellant had established compensable factors with regard
to her claim of a hostile work environment, including a false accusation of sending a locked
document, and an unreasonable deadline.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 2014 appellant, then a 47-year-old learning resource officer who worked
100 percent telework, filed an occupational disease claim, Form CA-2, alleging that she
experienced loss of consciousness, hyperventilation, headaches, and neck pain due to her
employment. She stated that she first became aware of her condition on February 27, 2014 and
first related her condition to her employment on March 21, 2014. Appellant noted that she had
become increasingly sick over the previous three months. She experienced loss of consciousness
and falling which resulted in a contusion to her head, as well as a strained neck and back.
Appellant alleged that her supervisor had harassed her for a long time. She stated that
she lost consciousness and hit her head during her workday on March 19, 2014. Appellant stated
that the supervisor previously harassed other women and that they ultimately left the employing
establishment. She stated that 17 women had left the employing establishment since he assumed
the role of deputy director. Appellant alleged that her supervisor made inappropriate racial
comments on January 12, 2010, and that he was counseled for these remarks on
January 19, 2010. She stated that on February 25, 2010 he would not leave her office and tried
to obstruct her doorway.
Appellant began mediation with her supervisor on March 4, 2010 which did not yield
satisfactory results. She alleged that he stated that on July 19, 2010 “he raped people.” The
supervisor took appellant’s cubicle away on August 19, 2014 and gave her one half of a table, a
locker, and an overhead cabinet. On July 9, 2014 he threatened her telework status and
instructed her to sit in the conference room with just her smartphone if she came into the office.
Appellant alleged that on January 14, 2014 her supervisor gave her a very detailed
assignment with very short deadlines and wrongly accused her of missing a deadline. She stated
that on January 16, 2014 he demanded that she come into work to meet with him regarding her
performance standards, but he later withdrew the demand. Appellant alleged that her supervisor
accused her of sending him a locked document on January 30, 2014 and gave her seven minutes
to fix the problem. She asserted that he refused to provide her with the human resources protocol
information until she reported him to his supervisor. Appellant provided her 30-day medical
certificate on February 6, 2014. On February 7, 2014 her supervisor called to request her leave
status and asked if she wanted to use annual leave. Appellant deferred and requested sick leave.
She noted that there was a problem with the e-mail system and she was unable to send e-mails
from her smartphone. Her supervisor approved her medical leave on February 10, 2014 which
delayed her sick leave and made it difficult to schedule medical appointments. On February 11,
2014 appellant was required to undergo an employing establishment interview regarding her
allegations. She requested reasonable accommodations on February 28, 2014. Her supervisor
requested information regarding her work status on March 6, 2014. He also demanded
completion of assignments and provided short deadlines.
Appellant alleged that on March 7, 2014 the stress of returning to her work environment
made her sick and she lost consciousness for the first time. On March 10, 2014 her supervisor
stated that she had not properly completed her sick leave request and informed her that she was
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not on flextime. Appellant asserted that he threatened her telework status, noting that he was
beginning to question her ability to complete assignments while working remotely. Her
supervisor stated that through her lack of initiative she had not submitted any work since
January. Appellant noted that she used leave from January 31 through February 28, 2014. She
stated that on March 11, 2014 her supervisor assigned her a three-day task and requested daily
updates. The supervisor also sent her a letter informing her that she was not to contact his
supervisor. Appellant discovered that there was no laptop for her to pick up. Her supervisor
disparaged her work on March 17, 2014 when she was working remotely while the employing
establishment was closed. Appellant received an e-mail on March 18, 2014 which requested
feedback, but not a negative response if there was no feedback. Her supervisor directed her to
respond and state that she had no feedback. Appellant lost consciousness on March 19, 2014 and
hit her head. She was admitted to the hospital and discharged on March 21, 2014. Appellant
alleged that her supervisor “began hounding” her about how much leave she needed. Her
supervisor requested a status update on March 24, 2014 which she could not provide. He
directed appellant to give him a day’s notice prior to returning to work. On March 25, 2014
appellant’s remote access was disabled and her supervisor refused to restore it. Her supervisor
requested medical evidence within 15 days of her return to work
Dr. Brenda Mitchell, a Board-certified obstetrician, diagnosed anxiety and post-traumatic
stress disorder due to a hostile work environment. She noted that appellant had multiple
syncopal episodes resulted in neck and back pain as well as anxiety.
Appellant’s supervisor controverted her claim on April 22, 2014. He noted that he had
directly supervised her since January 13, 2014 and that she worked for six days until January 21,
2014 and then utilized annual leave through January 27, 2014 and then on January 30, 2014
requested 30 days of sick leave due to stress. Appellant returned to work on March 3, 2014, but
did not contact her supervisor until March 6, 2014. She worked as a full-time teleworker.
Appellant’s supervisor denied harassing her or creating a hostile work environment.
Appellant’s supervisor stated that 17 women had left the employing establishment during
his 17-year tenure as deputy director, but that these departures were not objective indications of
his negative effects on female employees and that none of these women filed complaints against
him. He noted that appellant worked directly for him from February 2007 through July 2010
with no complaints filed. The supervisor stated that she also worked through him with a midlevel supervisor from August 2010 through January 10, 2014 without complaint. He denied ever
receiving supervisory counseling for racial remarks or any other behavior. The supervisor
denied obstructing the door to appellant’s office and stated that she shoved the door closed
against his shoulder and chest. He reported that when he reopened the door, she forcibly shoved
past him. The supervisor stated that mediation in March 2010 was successful and appellant
signed the agreement on March 9, 2010. He denied stating that he “raped people.”
Appellant’s supervisor stated that in August 2013 he reconfigured a single cubicle into
two carrels to be used by appellant and two other regularly teleworking employees who had no
requirement for office space. He added that on January 9, 2014 he informed her that she was
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required to initiate a new telework agreement and provided her detailed instructions on how to
do so which she did not follow. They completed the telework agreement on January 9, 2014
prior to the termination of appellant’s previous agreement scheduled for January 10, 2014.
Appellant’s supervisor quoted her telework agreement which noted that unplanned arrivals at the
workplace on days scheduled for telework may result in no vacant desk. In such an event,
working in a common area with a smartphone might be necessary. Appellant’s supervisor
denied contacting appellant from August 2010 until January 10, 2014.
Appellant’s supervisor continued that on January 13, 2014, the first day as appellant’s
direct supervisor, she e-mailed him that he had a pattern of hostile behavior towards her and
other females. He agreed that on January 13, 2014 he had assigned a task with a 2.25 hour
deadline to provide a synopsis of her previously assigned work activities including with each the
last action and date, the next two necessary steps and the dates by which these would be
completed, and any dependencies on the actions of others listing for whom she was waiting, the
action need and when the action was due. The supervisor stated that on January 13, 2014 he also
directed appellant to prepare three one to two-page information papers on the three primary
projects that she had been working on for one to six years. He asserted that four hours for each
short information paper was generous. The supervisor stated that appellant’s assignments were
simple, directly related to the work she had been performing for multiple years, were not
unreasonable, and the time allowed for completion was his prerogative as her manager and was
based on her experience in the same job for eight years.
When appellant returned to work on March 6, 2014 after 30 days of sick leave her
supervisor provided her assignments to complete within three hours including an e-mail
acknowledging receipt of her performance standards, clarification of her sick leave request for
the previous 30 days, forwarding e-mails, and a description of her planned activities. She was
also to arrange for the ability to send and read encrypted e-mail and provided a date that she
could report to the employing establishment to pick up a laptop. The supervisor noted that, if
appellant did not select a date he would assign a date that she should report to receive the laptop.
At the end of business on March 6, 2014 the supervisor notified appellant that she had not
completed her performance standards, had not forwarded the requested e-mails, had not
described her tasks, had not obtained the software for her e-mail, and had not provided him with
a date that she would report to pick up her laptop. He allowed her until March 14, 2014 to
coordinate her laptop pick up.
Appellant’s supervisor provided a copy of appellant’s telework agreement which noted
that unplanned arrivals at the employing establishment on days scheduled for telework may
result in no vacant desk to accomplish normal operations and that operating from a common
room such as a conference room with her smartphone may be necessary.
In a letter dated May 8, 2014, OWCP requested additional factual evidence in support of
appellant’s emotional condition claim. Appellant responded to this request on May 23, 2014. In
e-mails dated January 13 and 15, 2014, she alleged that the supervisor told her he hated her, had
engaged in hostile behavior toward her and harassment of her and other women, that he had
4

threatened rape, and that he exhibited racist and misogynistic behavior. Appellant’s supervisor
e-mailed appellant on January 9, 2014 and stated that she had incorrectly completed her telework
safety checklist and failed to verify that her home was safe. In e-mails dated January 16, 2014,
he initially requested that she report to the employing establishment to sign her performance
standards and coordinate pickup of a laptop. Thereafter, he stated that due to changes in the
schedule of activities in which he must participate and unforeseeable difficulty in re-imaging
laptops, the supervisor was delaying appellant’s appointment on January 27, 2014 and she should
work at her alternative worksite.
In an e-mail dated January 30, 2014 at 1:33 pm, the supervisor stated that the document
appellant sent at 11:59 a.m. was locked from editing and password protected. He asked that she
provide him with the password by 1:40 p.m. In a separate e-mail dated January 30, 2014 at 2:01
p.m., the supervisor stated that the spreadsheet that appellant forwarded was password protected
and he was unable to review it. He stated, “How it got locked is not my concern. I need you to
take the initiative and immediate action to correct the problem with your submission….”
Appellant contacted technical support and received an e-mail that the spreadsheet was not
password protected. She resent the document and her supervisor was able to open it on
January 30, 2014.
Appellant submitted witness statements from two former female coworkers detailing the
coworkers’ difficulties with the supervisor. She submitted an e-mail from the supervisor dated
February 5, 2014 approving her request for sick leave and stating that they should discuss her
need to coordinate with human resources. In an e-mail dated February 6, 2014, the supervisor
requested that appellant return her signed performance standards. Appellant also submitted emails from him dated March 6, 2014 stating that he was beginning to question her ability to
complete assignments while working remotely. She also provided March 10, 2014 e-mails
regarding a document which the supervisor requested in Microsoft Word rather than in an e-mail.
In an e-mail dated March 10, 2014, the employing establishment’s technical support
informed appellant that there was no laptop currently available for her. On March 17, 2014 the
supervisor asked that appellant revise and resubmit her draft work product by 3:45 p.m.
March 19, 2014.
By decision dated October 27, 2014, OWCP denied appellant’s claim for an emotional
condition finding that she had not substantiated a compensable factor of employment. It
accepted as factual that her supervisor informed her that she would have to sit in a conference
room with her smartphone if she came to the employing establishment on a day that was not
scheduled under her telework agreement, that on January 13, 2014 he gave her an assignment
with a short deadline which she completed, that he instructed her to meet at the employing
establishment to discuss her performance standards, that on January 30, 2014 he stated that she
had sent him a locked document, that on March 17, 2014 he disparaged her work, and that her
employing establishment cubicle was reduced to a carrel.

5

LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from her emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of the work.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus,
disability is not covered when it results from an employee’s fear of a reduction-in-force, nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.7 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.8 A claimant must support his or her allegations with probative
and reliable evidence. As a general rule, an employee’s emotional reaction to an administrative
or personnel matter is not covered under FECA, but error or abuse by the employing
establishment in what would otherwise be an administrative or personnel matter, or evidence that
the employing establishment acted unreasonably in the administration of a personnel matter, may
afford coverage. In determining whether the employing establishment erred or acted abusively,

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 136 (1999).

5

Supra note 2.

6

Id.

7

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

8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).

6

the Board has examined whether the employing establishment acted reasonably.9 Personal
perceptions alone are insufficient to establish an employment-related emotional condition.10
ANALYSIS
The Board finds that appellant has failed to substantiate a compensable factor of
employment and has therefore failed in her burden of proof to establish her claim for an
emotional condition sustained in the performance of duty. Appellant has not attributed her
emotional condition to her specific or specially assigned work duties under Cutler.11 For
instance, she has not alleged that she was unable to complete the work assigned by her
supervisor within the allotted time. Instead, appellant has alleged in part that her emotional
condition was the result of error or abuse on the part of her supervisor in making specific work
assignments and scheduling specific deadlines.
The Board finds that appellant’s allegations regarding the supervisor’s requests for
specific work products at specific times are appropriately categorized as disagreement with or
dislike of actions taken by the supervisor. The Board has held that a manager or supervisor must
be allowed to perform his or her duties and that the employees will disagree with actions taken.
Mere disagreement or dislike of actions taken by a supervisor will not be compensable absent
evidence establishing error or abuse.12 An employee’s reaction to an administrative or personnel
matter is not covered under FECA, unless there is evidence that the employing establishment
acted unreasonably.13 Because appellant has only offered generalized allegations and has not
presented sufficient evidence to establish that her supervisor acted unreasonably or engaged in
error or abuse in the assignment of tasks, the evaluation of work product and the assignment of
deadlines, she has failed to identify a compensable work factor in regard to these allegations.
Appellant also alleged that her supervisor improperly reduced her work space at the
employing establishment, improperly required her to complete her telework agreement,
improperly required her to sign her performance standards, improperly required her to arrange
for a new laptop, improperly required her to schedule a day at the employing establishment to
complete these tasks, improperly required her to work in a conference room if no other space
was available at the employing establishment, and improperly required her to provide
documentation regarding her leave requests. She further stated that he disparaged her work and

9

Martha L. Watson, 46 ECAB 407 (1995).

10

Roger Williams, 52 ECAB 468 (2001).

11

Supra note 2.

12

T.S., Docket No. 14-0807 (issued June 10, 2015); Linda Edwards-Delgato, 55 ECAB 401 (2004).

13

See Alfred Arts, 45 ECAB 530 (1994).

7

threatened her telework status. The Board finds that these actions are also administrative actions
and that appellant has not established error or abuse by the supervisor in any of these requests.14
Appellant has not provided any specific witness statements or other evidence that these
requirements made by her supervisor were abusive or erroneous. To the contrary, her supervisor
has stated that these actions were in accordance with his duties or the employing establishment’s
policy and that appellant’s telework agreement specifically noted that if she reports to the
employing establishment on an unscheduled day, she may be required to work in a conference
room from her smartphone. Furthermore, as noted above it is within the supervisor’s discretion
to assign work, to evaluate appellant’s work product and to offer his assessment of her ability to
work independently within her telework agreement. The Board finds that appellant has not
established these allegations as compensable factors of employment.
Appellant has established that in an e-mail dated January 30, 2014 at 1:33 p.m., her
supervisor stated that the document she sent at 11:59 a.m. was locked from editing and password
protected and asked that she provide him with the password by 1:40 p.m. She contacted
technical support and received an e-mail that the spreadsheet was not password protected.
Appellant resent the document and her supervisor was able to open it. The Board finds that she
has not established error or abuse in this interaction. Her supervisor indicated that he had
difficulty opening a document and asked that appellant resolve this issue. Appellant was able to
do so with no consequences or further repercussions. While she alleged that it was her
supervisor’s error or technical difficulties that prevented him from opening the document
initially, she has submitted no evidence substantiating this allegation. There is no evidence of
record supporting that her supervisor’s requests were unreasonable or constituted error or abuse.
Appellant further alleged that the initial request for the password for the document was
made on an unreasonable deadline, in that she was allowed only seven minutes to produce this
information. Contrary to counsel’s arguments on appeal, the Board finds that she has not
submitted evidence that a requested return e-mail with a simple response such as a password
within a short period of time is unreasonable15 or that her supervisor’s assumption that the
document was password protected constitutes a false allegation16 and thus a compensable factor.
Appellant has also alleged that the supervisor harassed her and created a hostile work
environment through the above-described actions and others. She alleged that he stated that he
raped people, that he forced out 17 other female employees, that he was reprimanded for racial
slurs, that he trapped her in her office, that he stated that he hated her, and that he was a
misogynist. The supervisor denied these allegations. For harassment or discrimination to give
rise to a compensable disability under FECA, there must be evidence that harassment or
14

P.W., Docket No. 15-0605 (issued June 1, 2015).

15

P.M., Docket No. 13-1182 (issued September 26, 2013).

16

Gary Browning, Docket No. 04-0535 (issued August 30, 2004) (finding that a false accusation is one which is
“intended to damage appellant’s credibility or reputation in the employing establishment.”)

8

discrimination did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under FECA. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. To establish entitlement
to benefits, a claimant must establish a factual basis for the claim by supporting his or her
allegations with probative and reliable evidence.17 Appellant has submitted no evidence in
support of her allegations of racial or sexual harassment by the supervisor, nor of a hostile work
environment. Although she has submitted witness statements that the supervisor acted in ways
that the witnesses believed were objectionable, her witnesses did not implicate any inappropriate
behavior by the supervisor directed at her. The Board finds that these statements lack the
necessary specificity to establish appellant’s claim of harassment or a hostile work
environment.18
The Board finds that appellant has not substantiated a compensable factor of
employment. Counsel’s arguments regarding compensable factors including a hostile work
environment, a false accusation of sending a locked document, and unreasonable deadline are not
substantiated by the record for the reasons listed above. Where a claimant has not established
any compensable employment factors, the Board need not consider the medical evidence of
record.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
developed an emotional condition in the performance of duty.

17

Alice M. Washington, 46 ECAB 382 (1994).

18

Supra note 14.

19

A.K., 58 ECAB 119 (2006).

9

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1047
Issued: December 15, 2011

Case Submitted on the Record

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

JURISDICTION
On March 22, 2011 appellant, through her attorney, filed a timely appeal from the
December 21, 2010 Office of Workers’ Compensation Programs’ (OWCP) decision which
denied appellant’s claim for a schedule award. 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 schedule award determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has
permanent impairment of the right arm.
FACTUAL HISTORY
On February 5, 2002 appellant, then a 59-year-old mail handler, sustained an injury to her
right hand while removing plastic straps on bundles at work. OWCP accepted the claim for a
1

5 U.S.C. § 8101 et seq.

right wrist sprain, right de Quervain’s disease and right carpal tunnel syndrome with radial
styloid tenosynovitis. Appellant received compensation for injury-related disability for work.
On January 29, 2008 appellant filed a claim for a schedule award. In a December 6, 2007
report, Dr. Nicholas Diamond, an osteopath specializing in osteomanipulative manipulative
medicine, noted appellant’s history of injury and treatment under the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001) (hereinafter,
A.M.A., Guides), he determined that appellant had 56 percent right arm impairment, based on
lost range of motion, pinch deficit and sensory deficit and 4 percent left arm impairment.2
By letter dated October 21, 2008, OWCP referred appellant, together with a statement of
accepted facts, a set of questions and the medical record, to Dr. David Rubenfeld, a Boardcertified orthopedic surgeon. In a November 18, 2008 report, Dr. Rubenfeld examined appellant
and opined that appellant had 30 percent impairment of the right arm.
On September 29, 2009 OWCP indicated that, since the time of Dr. Rubenfeld’s
examination, the sixth edition of the A.M.A., Guides became effective. It requested that
Dr. Rubenfeld provide an addendum report applying the sixth edition of the A.M.A., Guides.
OWCP did not receive a response. In an April 5, 2010 letter to appellant’s Congressional
representative, it indicated that a request for an addendum was sent to the second opinion
physician on September 29, 2009. However, as a response had not been received, it was in the
process of scheduling another second opinion examination.
OWCP referred appellant for a new second opinion examination to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In a report dated April 30, 2010, Dr. Askin utilized the
A.M.A., Guides and noted appellant’s history of injury and treatment. Examination revealed a
bony prominence at the right second carpometacarpal joint, which he described as “carpal
bossing, an osteoarthritic manifestation.” Dr. Askin also noted some tenderness and thickening
at the right thumb but no overt triggering of either hand. Appellant displayed “subjective
imperfections” when she responded to the physician’s request to show what she could do without
hurting herself. For example, for the neck, Dr. Askin noted that she “showed full cervical
flexion, full rotation to each side without complaint, but when she extended her neck (looking
up) she told me that made her dizzy. Spurling’s made her dizzy.” Also, right shoulder range of
motion was limited on examination but, passively, she allowed her right shoulder to be moved
with no firm endpoint. Appellant had full range of motion of the elbows, forearms, wrists,
fingers and thumbs. Dr. Askin also found that appellant was able to exert with the trapezii,
latissimus dorsi, pectoralis major, deltoids, biceps, biceps, wrist flexors or wrist extensors,
although he noted that she was not a very strong individual. He also found that there were no
atrophic or dystrophic changes about appellant’s hands, but that she did report diminished twopoint discrimination (more than 1 centimeter) in the right thumb and indexed digits. Dr. Askin
noted that the clinical carpal tunnel tests included the Phalen’s and Tinel’s tests which were both
positive (and both subjective). He referred to April 2, 2002 and April 11, 2007 electromyogram
reports that were consistent with right carpal tunnel syndrome. Dr. Askin concluded that
2

The record reflects that appellant had a separate claim for a June 6, 2002 injury that OWCP accepted for a
contusion of the left elbow. This claim is not before the Board on the present appeal.

2

appellant did not have any clinical evidence of de Quervain’s disease at the time of his
examination. Regarding appellant’s carpal tunnel syndrome, he indicated that a carpal tunnel
release would relieve her condition but appellant declined the procedure. Dr. Askin further
indicated that there was no objectively determinable impairment due to the right carpal tunnel
syndrome as she had full range of motion with no clinical evidence of atrophy or dystrophy. He
also indicated that her wrist sprain, had resolved. Dr. Askin concluded that appellant had no
ratable impairment and was at maximum medical improvement.3
In a June 14, 2010 report, OWCP’s medical adviser concurred with Dr. Askin. He
concluded that appellant did not have “any ratable permanent impairment.” The medical adviser
explained that a wrist sprain was a temporary, self-limiting, soft tissue condition that resolved
expeditiously, and within several weeks of onset from February 2002. He noted that there was
no current objective evidence of de Quervain’s disease. Regarding appellant’s right carpal
tunnel syndrome, OWCP’s medical adviser indicated that the electrodiagnostic findings were
consistent with “questionable borderline findings.” He concluded that due to the “lack of any
substantive, objective, probative occupationally[-]related condition(s) or findings” there was “no
objective basis or rationale” for any right arm impairment.
On July 13, 2010 OWCP denied appellant’s claim for a schedule award finding that the
medical evidence provided did not rate impairment under the A.M.A., Guides.
On July 19, 2010 appellant’s counsel requested a hearing, which was held on
November 5, 2010. During the hearing, appellant indicated that she never had the approved
surgery to her right wrist for carpal tunnel release as she could not take time off from work to
recuperate. She also indicated that she did not wish to have the surgery due to her age.
Appellant’s counsel asserted that Dr. Diamond’s December 6, 2007 report confirmed that
appellant had a significant problem with motion in the wrist and identified median nerve
entrapment. He also questioned the validity of Dr. Askin’s report noting that he did not provide
any wrist measurements. Appellant’s counsel alleged that Dr. Askin did not agree with the
statement of accepted facts as he discounted the work-related nature of the accepted condition,
appellant’s carpal tunnel syndrome. He asserted that there was a medical conflict.
In a December 21, 2010 decision, OWCP’s hearing representative affirmed the prior
decision, finding that appellant had no permanent impairment of the right arm.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
3

Dr. Askin also noted that appellant appeared to be suffering from effects of chemotherapy attributable to cancer
treatment.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued
after May 1, 2009, the sixth edition will be used.7
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award for the right arm in accordance with the sixth edition of the A.M.A., Guides.
The Board notes that while appellant submitted a December 6, 2007 report from
Dr. Diamond in support of his claim, that report cannot be utilized to determine impairment as
the physician evaluated appellant under the fifth edition of the A.M.A., Guides. Effective
May 1, 2009, the sixth edition is to be used.8
The Board notes that the only medical evidence which provided an impairment rating
under the appropriate edition of the A.M.A., Guides is Dr. Askin’s April 30, 2010 report and the
June 14, 2010 report of the medical adviser. Both physicians determined that there were no
objective findings to support an impairment rating. Dr. Askin concluded that appellant did not
sustain a ratable impairment. He noted appellant’s history of injury and treatment and examined
appellant. Dr. Askin conducted a thorough examination, during which he observed full range of
motion in appellant’s right hand and wrist. He found no objective basis on which to rate any
impairment of the right arm due to the accepted conditions. In view of the lack of objective
findings, Dr. Askin opined that appellant did not sustain ratable upper extremity impairment for
her right carpal tunnel syndrome. OWCP’s medical adviser reviewed Dr. Askin’s report and
concurred that appellant had no ratable impairment of upper extremity due to her accepted
conditions. The Board finds that Dr. Askin’s opinion constitutes the weight of the medical
evidence. Dr. Askin examined appellant, reviewed his history and found no basis on which to
attribute any permanent impairment to the accepted conditions. There is no current medical
evidence conforming with the sixth edition of the A.M.A., Guides, that supports work-related
permanent impairment of the right arm.
As noted, OWCP evaluates schedule award claims pursuant to the standards set forth in
the A.M.A., Guides. Appellant has the burden of proof to submit medical evidence supporting
that he has permanent impairment of a scheduled member of the body.9 As such evidence has
not been submitted, appellant has not established entitlement to a schedule award.
On appeal, appellant’s counsel disagreed with the findings provided by Dr. Askin and
suggested a conflict in the medical evidence. The Board notes that Dr. Askin’s report is the only

6

Id. at § 10.404(a).

7

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

8

See id.

9

See Annette M. Dent, 44 ECAB 403 (1993).

4

report which conformed with the sixth edition of the A.M.A., Guides. He explained the reasons
why appellant’s accepted conditions did not cause permanent impairment of the right arm.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2011
Washington, DC

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

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

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

10

A.M.A., Guides 497, section 16.2.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.S., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 12-1432
Issued: March 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2012 appellant filed a timely appeal from a May 9, 2012 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for an oral hearing
by the Branch of Hearings and Review. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit
decision by OWCP. The last merit decision of record was OWCP’s November 4, 2010 decision.
Because more than 180 days has elapsed between the November 4, 2010 decision and the filing
of this appeal on July 30, 2012, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for an
oral hearing.
1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e). For this reason, the Board also lacks jurisdiction to review the nonmerit decision of January 23, 2012.

FACTUAL HISTORY
On December 26, 2008 appellant, then a 48-year-old district ranger, filed an occupational
disease claim (Form CA-2) alleging that he developed a psychiatric condition from long-term
harassment, belittlement, verbal abuse, intimidation and aggressive behavior as a result of his
federal employment duties.
By decision dated August 12, 2009, OWCP denied appellant’s claim finding that his
emotional condition did not occur in the performance of duty as alleged.
By letter dated August 10, 2010, appellant requested reconsideration of OWCP’s decision
and submitted evidence in support of his claim.
By decision dated November 4, 2010, OWCP denied modification of the August 12, 2009
decision finding that appellant’s emotional condition did not occur in the performance of duty. It
noted that he did not establish a compensable factor of employment and that his claimed
emotional condition was a result of self-generated reactions to his supervisor’s administrative
and personnel actions.
On November 3, 2011 appellant requested reconsideration of OWCP’s November 4,
2010 decision. In support of his request, appellant submitted arguments, medical records and
copies of letters that he sent to the employing establishment inquiring about Equal Employment
Opportunity (EEO) proceedings.
By decision dated January 23, 2012, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and
relevant evidence. It noted that appellant submitted arguments which were found to be without
merit and repetitious of evidence already considered in prior decisions. OWCP further stated
that the medical evidence submitted was immaterial to the issue of performance of duty and the
remaining evidence submitted pertained to a separate Freedom of Information Act (FOIA)
decision previously issued on August 18, 2011.3
By letter dated March 2, 2012, appellant disagreed with OWCP’s January 23, 2012
decision and requested an oral hearing before the Branch of Hearings and Review.4
By decision dated May 9, 2012, the Branch of Hearings and Review denied appellant’s
request for an oral hearing on the grounds that he was not entitled to a hearing as a matter of
right because he had previously requested reconsideration. It exercised its discretion and further
determined that the issue in the case could equally well be addressed by requesting
3

OWCP’s August 18, 2011 FOIA decision is a separate decision and not before the Board on appeal.

4

The Board notes that on March 13, 2012, appellant filed a notice of appeal and requested an oral argument
before the Board. By letter dated March 27, 2012, the Board requested that he respond by April 18, 2012 if he
wished to proceed with an oral argument before the Board. By letter dated April 27, 2012, appellant requested that
his appeal before the Board be dismissed. In another letter dated April 27, 2012 to the Branch of Hearings and
Review, he stated that he wished to proceed with his oral hearing and had requested dismissal of his appeal before
the Board. The Board dismissed appellant’s appeal on July 27, 2012, Docket No. 12-876.

2

reconsideration from OWCP and submitting evidence not previously considered which
establishes that he sustained an injury causally related to his federal employment.5
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.6 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.7 OWCP’s regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.8
Additionally, the Board has held that OWCP, in its broad discretionary authority in the
administration of FECA,9 has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that OWCP must exercise this discretionary authority
in deciding whether to grant a hearing.10 OWCP procedures, which require it to exercise its
discretion to grant or deny a hearing when the request is untimely or made after reconsideration,
are a proper interpretation of FECA and Board precedent.11
ANALYSIS
Appellant’s request for an oral hearing before the Branch of Hearings and Review dated
March 2, 2012 was denied on the grounds that he had previously requested reconsideration
pursuant to 5 U.S.C. § 8128(a).12 In its May 9, 2012 decision, OWCP noted that, while he was
not entitled to an oral hearing as a matter of right, it had considered the matter in relation to the
5

The Board notes that appellant submitted additional evidence after OWCP rendered its May 9, 2012 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and, therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
6

5 U.S.C. § 8124(b)(1).

7

20 C.F.R. § 10.615.

8

Id. at § 10.616(a).

9

5 U.S.C. §§ 8101-8193.

10

Marilyn F. Wilson, 52 ECAB 347 (2001).

11

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
12

See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was
made after OWCP issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and
therefore appellant was not entitled to an oral hearing before an OWCP hearing representative as a matter of right).

3

issue involved and under its discretionary authority, denied the request as appellant could pursue
his claim further by requesting reconsideration and submitting evidence in support of his claim.
Appellant had previously requested reconsideration on November 3, 2011 and OWCP
issued its reconsideration decision on January 23, 2012. In the instant case, appellant’s request
for an oral hearing, dated March 2, 2012, was made after OWCP issued its January 23, 2012
decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128. Hence, OWCP
correctly found that appellant was not entitled to an oral hearing before an OWCP hearing
representative as a matter of right under section 8124(b)(1) of FECA as he had previously
requested reconsideration.13
OWCP then exercised its discretion and determined that appellant’s hearing request could
equally well be addressed by requesting reconsideration and submitting additional evidence to
address the issue in this case. The Board finds that there is no evidence of record that OWCP
abused its discretion in denying appellant’s hearing request.14 Thus, the Board finds that
OWCP’s May 9, 2012 decision denying appellant’s request for an oral hearing was proper under
the law and facts of this case.
CONCLUSION
The Board therefore finds that OWCP properly denied appellant’s request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1).

13

Id.

14

Daniel J. Perea, 42 ECAB 214, 221 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 9, 2012 is affirmed.
Issued: March 22, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Mary, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1149
Issued: February 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 22, 2019 appellant filed a timely appeal from a November 2, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to modify a July 21, 2015 loss
of wage-earning capacity (LWEC) determination.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the November 2, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On July 19, 2013 appellant, then a 47-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on July 18, 2013 she picked up a tray and injured her left
shoulder while in the performance of duty. She stopped work on July 19, 2013. OWCP accepted
the claim for sprain of left shoulder and upper arm and left impingement syndrome and paid wageloss compensation and medical benefits. Appellant returned to full-time, limited-duty employment
on September 5, 2014. OWCP accepted a recurrence of disability for the period November 7,
2014 through April 4, 2015. On May 13, 2015 appellant returned to a permanent, full-time
position as a limited-duty lobby director, which OWCP determined met her medical requirements.
On July 13, 2015 she suffered a new injury and stopped work.3
By decision dated July 21, 2015, OWCP issued a formal LWEC determination finding that
appellant’s limited-duty lobby director position, effective May 13, 2015, fairly and reasonably
represented her wage-earning capacity. It also found that she was entitled to wage-loss
compensation benefits as her actual earnings as a limited-duty lobby director were less than her
earnings from her date-of-injury position.
In a December 4, 2015 report, Dr. William Dinenberg, a Board-certified orthopedic
surgeon and second opinion physician, noted that appellant was involved in a nonwork-related
motor vehicle accident on November 19, 2015. He indicated that the November 19, 2015 motor
vehicle accident had exacerbated her conditions and that she had a significantly worsened range
of motion (ROM). Dr. Dinenberg opined that her ROM upon examination on that date did not
accurately reflect her work-related conditions, but rather her November 19, 2015 motor vehicle
accident.
In a July 20, 2016 duty status report (Form CA-17), Dr. Samy Bishai, an orthopedic
surgeon, held appellant off work for four weeks due to reduced neck and left shoulder ROM and
cervical disc syndrome. He continued to restrict her from work in CA-17 forms dated August 24,
September 22, and November 11, 2016.
In a November 11, 2016 report, Dr. Bishai noted that appellant was previously at maximum
medical improvement (MMI) from her injuries on October 7, 2014, but that the nonwork-related
motor vehicle accident of November 19, 2015 had exacerbated her conditions. He indicated that
appellant’s injury was at MMI and that the aggravation of her left shoulder injury due to the auto
accident had improved with treatment. In that report, as well as in a December 15, 2016 report,
Dr. Bishai diagnosed internal derangement of the left shoulder, rotator cuff syndrome left shoulder,
left shoulder impingement syndrome, internal derangement of the right shoulder, cervical disc
syndrome with radiculopathy bilateral, bilateral carpal tunnel syndrome, herniated cervical disc at
C6-7, and depression. He continued to opine that appellant was totally disabled from work because
of her left shoulder and left upper extremity pain and problems.

3
Appellant worked 62 days as a limited-duty lobby director. Under File No. xxxxxx462, OWCP accepted a sprain
of back, thoracic region.

2

On January 21, 2017 the employing establishment terminated appellant’s employment due
to her medical inability to perform the duties of her position.
On February 6, 2017 OWCP received Dr. Bishai’s July 20 and August 24, 2016 reports
which indicated that appellant’s condition was unchanged since her last visit and that she continued
to have pain and difficulty with ROM of her left shoulder joint. Dr. Bishai also opined that she
could not work due to her left shoulder condition, severe pain, and ROM limitations. OWCP also
received Dr. Bishai’s September 22, 2016 report in which he opined that appellant was unable to
work because of the injury to her left shoulder.
On March 24, 2017 appellant filed a wage-loss compensation claim (Form CA-7) for the
period July 20, 2016 through November 30, 2017. In an April 5, 2017 development letter, OWCP
requested that appellant submit medical evidence to support her claim for disability compensation
benefits. Appellant was afforded 30 days to respond.
In a May 25, 2017 letter, appellant’s then-counsel requested that OWCP consider whether
she had sustained a consequential psychiatric injury.4
By decision dated June 16, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period July 20, 2016 through March 30, 2017 finding that the medical
evidence submitted failed to provide an explanation as to how appellant’s accepted conditions
worsened on or after July 20, 2016 to render her totally disabled from work. It also noted that
appellant was involved in a nonwork-related motor vehicle accident on November 19, 2015.
In an October 10, 2017 report, Dr. Mark A. Seldes, a Board-certified family practitioner,
diagnosed internal derangement of the left shoulder joint, rotator cuff syndrome of the left
shoulder, left shoulder impingement syndrome, internal derangement of the right shoulder,
cervical disc syndrome with bilateral radiculopathy, bilateral carpal tunnel syndrome, herniated
cervical disc at C6-7, and depression. He indicated that appellant’s left shoulder condition
continued to slowly deteriorate although it was relatively stable since her last appointment.
Dr. Seldes opined, in his report and a CA-17 of October 10 and November 13, 2017, that appellant
was unable to work due to the severe limits of her ROM and pain in the left shoulder joint. He
further indicated, in his November 13, 2017 report, that appellant’s examination had not changed
and that she was at MMI.
On December 7, 2017 appellant filed an additional wage-loss compensation claim (Form
CA-7) for the period July 20, 2016 through November 30, 2017.
In a December 11, 2017 report, Dr. Seldes again indicated that appellant’s condition
remained relatively stable, if not slowly deteriorating. He also noted that there was a strong

4

In support of the consequential psychiatric claim, OWCP received a December 1, 2014 report, signed on April 25,
2017, in which Dr. Gary Arthur, a Board-certified psychiatrist, opined that appellant’s depression was caused by her
pain and degree of disability and that she was totally disabled. He indicated that appellant had no change in her
condition or disability on April 25, 2017. OWCP has not developed whether appellant sustained a consequential
psychiatric injury and therefore that matter is not presently before the Board on the present appeal.

3

possibility that appellant would continue to develop problems with her left shoulder, such as
adhesive capsulitis.
In a development letter dated December 19, 2017, OWCP informed appellant that since a
formal LWEC determination had been issued in her case, her wage-loss compensation claim would
be treated as a request for modification of the LWEC determination. It informed her of the
requirements for modification of an LWEC determination. Appellant was afforded 30 days to
provide the necessary evidence.
On January 9, 2018 OWCP received appellant’s undated statement in which she indicated
that she had completed vocational rehabilitation and had worked at two job offers. However,
appellant explained that she was removed from employment when the employing establishment
could no longer accommodate her medical restrictions related to the July 18, 2013 employment
injury.
In January 22 and February 15, 2018 reports, Dr. Seldes continued to note that appellant’s
condition was relatively stable, although she had difficulties with limited ROM in her left shoulder.
By decision dated March 15, 2018, OWCP denied modification of the July 21, 2015 LWEC
determination.
On March 21, 2018 appellant, through her then-counsel, requested an oral hearing before
an OWCP hearing representative. A telephonic hearing was held on August 1, 2018. Appellant
reiterated that she had been terminated when the employing establishment could no longer
accommodate her work-related restrictions.
In intermittent medical reports from April 16 through October 2, 2018, Dr. Seldes provided
the additional diagnosis of left shoulder acromioclavicular arthritis. He continued to opine that
appellant’s left shoulder condition remained relatively stable, but painful with progressive
deterioration in her ROM. In his May 22, 2018 report, Dr. Seldes opined that appellant was
disabled because of the disease process affecting her wrists and hands as well as her shoulders and
neck. He recommend that she apply for disability retirement. In his June 27, July 31, and
October 2, 2018 reports, Dr. Seldes opined that appellant had developed right shoulder pain and
impingement as a consequential injury to her accepted left shoulder and upper arm condition.
By decision dated November 2, 2018, an OWCP hearing representative affirmed OWCP’s
March 15, 2018 decision denying modification of the July 21, 2015 LWEC determination.5
LEGAL PRECEDENT
A wage-earning capacity determination is a finding that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.6 Generally, wages actually earned are the best measure of wage-earning capacity and, in
5

By decision dated July 30, 2018, OWCP awarded appellant a schedule award for 24 percent permanent impairment
of the left arm. The award ran for 74.88 weeks for the period May 28, 2018 through November 3, 2019.
6

5 U.S.C. § 8115(a); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

4

the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.7 A determination regarding
whether actual earnings fairly and reasonably represent one’s wage-earning capacity should be
made only after an employee has worked in a given position for at least 60 days.8 Wage-earning
capacity may not be based on an odd-lot or make-shift position designed for an employee’s
particular needs, a temporary position when the position held at the time of injury was permanent,
or a position that is seasonal in an area where year-round employment is available.9 Compensation
payments are based on the wage-earning capacity determination, and it remains undisturbed until
properly modified.10
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.11 OWCP’s procedures provide
that, “[i]f a formal [LWEC] decision has been issued, the rating should be left in place unless the
claimant requests resumption of compensation for total wage loss. In this instance the CE [claims
examiner] will need to evaluate the request according to the customary criteria for modifying a
formal [LWEC].”12 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to modify the July 21, 2015
LWEC determination.
Appellant does not assert that modification of her LWEC determination is warranted
because she has been retrained or otherwise vocationally rehabilitated.
In reaching its determination of appellant’s LWEC, OWCP properly found that appellant
had received actual earnings as a limited lobby director for more than 60 days in that she had been
working in the position since May 13, 2015 when OWCP issued its July 21, 2015 LWEC
7

See J.A., Docket No. 18-1586 (issued April 9, 2019).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
9
See James D. Champlain, 44 ECAB 438, 440-41 (1993); Federal (FECA) Procedure Manual, id. at Chapter
2.815.5c (June 2013).
10

See M.F., Docket No. 18-0323 (issued June 25, 2019).

11

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,
45 ECAB 211 (1993).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.812.9(a)
(June 2013); D.T., Docket No. 18-0174 (issued August 23, 2019); J.B., Docket No. 17-0817 (issued April 26, 2018);
Harley Sims, Jr., 56 ECAB 320 (2005).
13

O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

5

decision.14 It also properly found that appellant’s actual wages fairly and reasonably represented
her wage-earning capacity. The record does not establish that the limited lobby director position
constituted part-time, sporadic, seasonal, or temporary work.15 Moreover, the record does not
reveal that the position was a make-shift position designed for appellant’s particular needs.16
Appellant stopped work because she claimed a new traumatic injury. Therefore, the Board finds
that she has not met her burden of proof to establish that the original determination was erroneous.
Thus, appellant must establish a material change in the nature and extent of the injuryrelated condition by establishing that the current medical evidence demonstrates a worsening of
the accepted medical conditions with no intervening injury resulting in new or increased workrelated disability.17 She asserts that she cannot perform the selected position due to her present
medical conditions and that she was terminated as the employing establishment could not
accommodate her medical restrictions.
In support of appellant’s request to modify the LWEC determination, she has submitted
numerous reports from Dr. Bishai and Dr. Seldes. The record reflects that following the July 21,
2015 LWEC determination appellant stopped work and claimed a traumatic injury. She was also
involved in a nonwork-related motor vehicle accident on November 19, 2015.
Dr. Bishai placed appellant in total disability status in duty status and medical reports dated
from July 20 through November 11, 2016 due in part to reduced ROM of her left shoulder.
However, he failed to provide an opinion regarding causal relationship other than generally noting
injury to her left shoulder.18 In his November 11, 2016 report, Dr. Bishai noted that while
appellant was previously at MMI from her injuries on October 7, 2014, a November 19, 2015
nonwork-related motor vehicle accident had exacerbated her conditions. He indicated that
appellant’s injury was again at MMI. Dr. Bishai provided several diagnoses to the left shoulder,
including internal derangement, rotator cuff syndrome and impingement syndrome, along with
other conditions. He opined that she was totally disabled because of her left shoulder and left
upper extremity pain and problems. Dr. Bishai’s opinion does not support modification of the
LWEC determination as he failed to provide a clear opinion as to why appellant could not work
on a full-time basis as a limited lobby director, the position on which the determination had been
based, due to the accepted employment conditions of left shoulder and upper arm sprain and left
shoulder impingement syndrome.19 With regard to the additional conditions, appellant has the
14

See J.A., supra note 7.

15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Wages, Chapter 2.815.5 (June 2013).
16

Id.

17

Supra note 8 at Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter
2.1501.3(a)(2) (June 2013).
18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19

See D.R., Docket No. 16-0528 (issued August 24, 2016) (a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining the relationship between a given employment activity
and a diagnosed medical condition).

6

burden of proof to submit evidence to establish additional conditions not accepted or approved by
OWCP resulted from the employment injury through the submission of reasoned medical
evidence.20
Dr. Seldes submitted reports from October 10, 2017 onwards. He diagnosed internal
derangement of the left shoulder joint, rotator cuff syndrome of the left shoulder, left shoulder
impingement syndrome, internal derangement of the right shoulder, cervical disc syndrome with
bilateral radiculopathy, bilateral carpal tunnel syndrome, herniated cervical disc at C6-C7, and
depression. Dr. Seldes opined that appellant’s left shoulder condition was relatively stable and
slowly deteriorating. He also opined that appellant was unable to work due to the severe limited
ROM and pain in the left shoulder joint and that she reached MMI on November 13, 2017.
However, the reports from Dr. Seldes do not support modification of the LWEC determination as
he failed to provide a clear opinion as to why appellant could not work on a full-time basis as a
limited lobby director, the position on which the determination had been based.21 Dr. Seldes also
failed to describe appellant’s accepted conditions nor did he explain how they worsened to the
point that she could not work on a full-time basis as a limited-duty lobby director.
In intermittent medical reports from April 16 through October 2, 2018, Dr. Seldes provided
additional diagnosis of left shoulder acromioclavicular arthritis, but offered no opinion on causal
relationship.22 In his May 22, 2018 report, he opined that appellant was disabled, in part, because
of the disease process affecting her shoulders, but provided no explanation as to why or how
appellant’s employment injury had been aggravated without intervening or preexisting conditions
related to her continuing left shoulder condition. In a case where a preexisting condition involving
the same part of the body is present and the issue of causal relationship therefore involves
aggravation, acceleration, or precipitation the physician must provide a rationalized medical
opinion that differentiates between the effects of the work-related injury or disease and the
preexisting condition.23 In June 27, July 31, and October 2, 2018 reports, Dr. Seldes also opined
that appellant had developed right shoulder pain and impingement as a consequential injury to her
left shoulder. However, he failed to provide medical rationale explaining why or how there had
been a worsening of the accepted left shoulder conditions and her current inability to perform the
position on which the LWEC determination was based. Thus, Dr. Seldes’ opinions are insufficient
to require modification of the LWEC determination as he failed to provide a clear opinion,
supported by medical rationale, which explained how appellant’s inability to perform her
employment duties as a limited lobby director was causally related to an accepted condition.24
The Board thus finds that appellant has not met her burden of proof to establish a material
change in the nature and extent of her injury-related condition, that the original determination was

20

See V.B., Docket No. 12-599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

21

See D.R., supra note 19.

22

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., supra note 18.

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

24

See D.R., supra note 19.

7

in fact erroneous, or that she was vocationally rehabilitated. Appellant has therefore not met her
burden of proof to establish that the July 21, 2015 LWEC determination should be modified.
On appeal appellant asserts that the LWEC does not apply to her. As indicated above, once
a wage-earning capacity of an injured employee is determined, modification of such determination
is unwarranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous.25 As explained above, appellant has not established a basis to
require modification of OWCP’s LWEC determination.
Appellant may request modification of the July 21, 2015 LWEC determination, supported
by new evidence or argument, at any time before OWCP.26
CONCLUSION
The Board finds that appellant has not met her burden of proof to modify the July 21, 2015
LWEC determination.

25

20 C.F.R. § 10.511; see E.H., Docket No. 17-0963 (issued August 24, 2018); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
26

J.A., supra note 13; S.J., Docket No. 19-0186 (issued August 2, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 21, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9