United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Docket No. 09-1776
Issued: July 15, 2010

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

Case Submitted on the Record

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

JURISDICTION
On July 1, 2009 appellant timely appealed the April 8, 2009 merit decision of the Office
of Workers’ Compensation Programs, which denied his emotional condition claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On August 13, 2007 appellant, then a 53-year-old senior associate advocate, filed a claim
for an emotional condition (Form CA-2) that arose on or about March 16, 2007. He worked for
the Taxpayer Advocate Service (TAS), and on February 15, 2007 a taxpayer allegedly threatened
him during a telephone conversation. After reporting the incident, appellant stated that he

became stressed and anxious when having a discussion with management. He took an eightweek leave of absence from April 24 to June 15, 2007.
Appellant attributed the taxpayer threat of February 15, 2007 to an error made by Lisa W.
Laurent, a supervisor. He had written the taxpayer on January 26, 2007 requesting a reply by
February 9, 2007. Absent a timely response, the taxpayer’s TAS case would have been closed.
On January 30, 2007 the taxpayer called requesting that his TAS case be closed immediately and
that certain documentation be returned to the IRS’s Fresno, CA office.1 Ms. Laurent spoke to the
taxpayer at some point after his January 30, 2007 conversation with appellant. When the
taxpayer called back on February 15, 2007 he asked to speak with Ms. Laurent, but she was
unavailable. He was reportedly upset because he had not been contacted on February 9, 2007 as
Ms. Laurent had promised. The taxpayer accused appellant of not doing anything to help and
reportedly told appellant “‘I wish you was (sic) up here so that I could take care of you.’”
Appellant considered this remark threatening. That day he advised a supervisor, Mary Krobert,
of the taxpayer’s comment. Both Ms. Krobert and Ms. Laurent had already received several
messages from the taxpayer. Appellant met with Ms. Krobert and Ms. Laurent to discuss the
case before they returned the taxpayer’s call. After their discussion, he was asked to leave
Ms. Krobert’s office so that she and Ms. Laurent could contact the taxpayer. Appellant also
stated that the Treasury Inspector General for Tax Administration (TIGTA) was informed of the
taxpayer’s comments.
Appellant updated the Taxpayer Advocate Management Information System (TAMIS) on
February 16, 2007 with the facts that led to the taxpayer’s comment. He explained that his
TAMIS entry showed that Ms. Laurent failed to provide an estimated completion date (ECD)
and that she had not updated TAMIS from follow-up status (F) to next contact date (NCD). At
noon on February 16, 2007, Ms. Laurent called appellant to her office where she and
Ms. Krobert directed him to remove the information in order to conceal the mistake made by
Ms. Laurent. Appellant stated that he told them he was on his lunch break; but they stated that
he could not leave the office until he removed the documentation from TAMIS.2 As he
attempted to open the office door, Ms. Krobert arose from her seat and removed appellant’s hand
from the door handle and closed it again. Appellant was told that the information he added on
TAMIS was inappropriate because only case advocates, such as himself, provided ECD and
NCD updates. He claimed that his stress level rose due to management’s actions and he
requested sick leave, but was denied. Appellant was told he would need a doctor’s certificate for
four hours of sick leave. However, after Ms. Laurent and Ms. Krobert realized appellant was
under extreme stress his sick leave was approved and he was allowed to leave. Appellant
characterized the February 16, 2007 meeting with Ms. Laurent and Ms. Krobert as being held
hostage through verbal and physical restraints.
On March 8, 2007 Ms. Krobert issued a performance counseling memorandum based on
the February 16, 2007 incident. Appellant was advised that inappropriate information was
entered on TAMIS and directed to remove the information. Ms. Krobert noted that appellant
1

Apparently the Fresno office could not take any action because appellant’s TAS case remained open.

2

His daughter was waiting for him in the car and she reportedly telephoned him several times while he was
meeting with Ms. Laurent and Ms. Krobert.

2

refused to follow this directive and kept repeating that the taxpayer was not upset with him, but
with the system. While she and Ms. Laurent did not disagree with appellant, their own
conversation with the taxpayer revealed that he was upset with appellant’s mannerism.
Ms. Krobert noted that regardless of what the taxpayer was upset with, appellant had been given
a direct order with which he failed to comply.
Appellant was also admonished for poor workplace interaction. Ms. Krobert noted that
he did not interact with management in a professional manner and was uncooperative. Several
times during the February 16, 2007 meeting appellant was told to calm down and go to lunch,
but he stated that he had to go home. Ms. Krobert noted that appellant still had several contacts
due that day, but he was unwilling to stay. She characterized the incident as not fostering a good
relationship with management and that appellant became very loud by stating how stressed he
was and then asking Ms. Laurent if she felt his pain. Appellant’s behavior was inappropriate and
appellant was expected to communicate in a professional and courteous manner and to foster
good working relationships by treating everyone with respect and controlling his feelings.
Ms. Krobert advised appellant that immediate improvement was expected in the area of
following through with direct orders and being able to communicate in a pleasant and
professional manner.
In his statement to the Office, appellant indicated that Ms. Krobert issued a March 8,
2007 memorandum stating his behavior was inappropriate during the period he was held hostage.
He explained that he became very loud in order to be freed from the situation.
Appellant alleged that on March 13, 2007 he spoke with Carolyn Lewis, a supervisor,
about reducing his case inventory due to the February 16, 2007 incident. Ms. Lewis raised her
voice causing him to experience stress. After his meeting with Ms. Lewis, all three management
officials accused him of threatening them.
On March 16, 2007 appellant was reportedly preparing an incident timeline for TIGTA
when Ms. Krobert and Ms. Lewis interrupted what he was doing and told him to resume working
on his cases. He again experienced stress while talking to management and called TIGTA to
intervene on his behalf. According to appellant, TIGTA advised him that management’s threat
accusation was determined to have been a communication problem. He indicated that TIGTA
was able to secure time for him to complete the report.
On March 26, 2007 Dr. Mark H. Townsend, a Board-certified psychiatrist, recommended
that appellant return to work, but with a reduced inventory. Appellant alleged that Ms. Krobert
made a “medical determination” that his period of reduced inventory would end on
April 23, 2007. On April 13, 2007 Ms. Krobert responded to appellant’s request for a reduced
workload due to his medical condition. She explained that a federal occupational physician
contacted appellant’s doctor, who had suggested a reduced workload for a temporary period of
time. Ms. Krobert noted that appellant had not been assigned any new cases since March 15,
2007 and, as a result, his caseload had been reduced from 49 cases to a current inventory of 28
cases. Ms. Krobert stated that because appellant had already been permitted to work a lighter
caseload for approximately four weeks, he would begin to receive new cases on April 23, 2007.
When appellant saw Dr. Townsend on April 23, 2007, he recommended an eight-week leave of
absence. Appellant was off work from April 24 to June 15, 2007.

3

After resuming work, appellant received a mid-year evaluation which covered the period
October 1, 2006 through July 13, 2007. The evaluation was delayed due to appellant’s leave
beginning April 24, 2007. Appellant took exception to the mid-year evaluation because it
covered a 10-month period and included events beyond the typical 6-month period. Appellant
alleged that these later events were used to reduce his rating. He noted that the mid-year
evaluation included reference to a July 9, 2007 incident where he refused to come to
Ms. Krobert’s office.3 Appellant explained that he was paranoid and instead requested that they
talk via the telephone.
On July 20, 2007 appellant provided management with his doctor’s recommendation that
he work only four hours a day. The employing establishment allowed him four hours leave
without pay (LWOP) from August 6 to 10, 2007. On August 13, 2007 Ms. Laurent advised
appellant that the medical evidence was not sufficient to support his request for additional
LWOP.
On October 30, 2007 appellant reiterated that his stress was aggravated by the
February 16, 2007 incident, thus causing him to raise his voice in order to be released from the
office. Since then, he received a series of memorandum because of his fear of closed-door
meetings with the same management officials. Appellant reiterated his concerns about his midyear review, which cited an April 10, 2007 meeting that he walked out of and a July 9, 2007
incident where he failed to attend a meeting. He stated that his job performance decreased
because of post-traumatic stress caused by the incident.
Ms. Laurent provided a December 12, 2007 statement. She explained that she had
received a voicemail message from the taxpayer on January 30, 2007 and when she returned the
call, the taxpayer was upset about a conversation he had with appellant. The taxpayer did not
like the way appellant had spoken to him. Ms. Laurent apologized and explained the status of
the case and what actions needed to be taken. She also informed the taxpayer that he would be
contacted by February 9, 2007. Ms. Laurent stated that she returned the case to appellant with
instructions to send an operation assist request by February 2, 2007. She also stated that a copy
of the TAMIS case history was attached to the file she returned to appellant.
On February 15, 2007 Ms. Laurent was in training most of the day. When she returned to
her office around 3:00 p.m., she retrieved at least seven voicemail messages from the taxpayer,
who was reportedly upset with how appellant was handling his case. Ms. Laurent immediately
went to see Ms. Krobert, appellant’s manager, to advise her to call the taxpayer as soon as
possible. Ms. Krobert informed Ms. Laurent that she too had received several messages from the
taxpayer. At that time, Ms. Laurent learned from Ms. Krobert about the taxpayer’s alleged threat
against appellant. Ms. Laurent stated that she told Ms. Krobert to first talk to appellant to find
3

The record included only the first page of appellant’s July 17, 2007 mid-year evaluation. The evaluation
referenced the March 8, 2007 memorandum appellant received for unprofessional behavior, as well as an April 10,
2007 incident where he reportedly walked out of a meeting. It also noted that he received three memoranda on
July 9, 2007, one of which was for refusing to come to Ms. Krobert’s office. After receiving the memoranda,
appellant reportedly taped them on the front of the drop file cabinet in public view. He was subsequently
admonished by Director Melvin Ware for disrespectful and unprofessional conduct exhibited in the work area,
particularly in regard to interactions with management. Mr. Ware’s August 10, 2007 disciplinary memorandum also
noted that appellant inappropriately displayed a counseling memorandum in a common area.

4

out what happened and then call the taxpayer. Ms. Laurent stated that appellant insisted that they
call the taxpayer in his presence so that he could address the alleged threat. When Ms. Krobert
refused, appellant became upset. Ms. Laurent stated that they asked him to leave the office, but
he refused. After several requests, appellant finally left the office, but he was very upset with
their decision to call the taxpayer before reporting the alleged incident to TIGTA. According to
Ms. Laurent, he did not like the fact that he was not permitted to confront the taxpayer.
When Ms. Krobert called the taxpayer on February 15, 2007, he reportedly told her that
he did not like the way appellant had spoken to him and was displeased with appellant’s handling
of his case. Ms. Laurent stated that she and Ms. Krobert asked the taxpayer what he stated that
could have made appellant feel threatened. The taxpayer reportedly told appellant that he wished
he could be there to show him. The taxpayer further explained that he wished he could show
appellant what was going on so that appellant could understand the problem he was having with
his tax return. Ms. Krobert documented the conversation with the taxpayer in the case file and
reported the alleged threat to TIGTA. Ms. Laurent stated that Ms. Krobert provided TIGTA with
the taxpayer’s information and requested that TIGTA contact appellant before the end of the day
to let him know that the alleged threat had been reported.
On February 16, 2007 Ms. Krobert informed Ms. Laurent that appellant read the TAMIS
history she documented the previous day and he became upset. Ms. Laurent stated that appellant
had gone behind Ms. Krobert’s history and entered his own comments, which were not relevant
to resolving the taxpayer’s problem. Ms. Krobert advised Ms. Laurent that she had already
called appellant and advised him to remove the history in the case, but he had not done so. Due
to this failure, she proposed that she and Ms. Laurent meet with appellant. Ms. Krobert wanted
Ms. Laurent present during the meeting because she was acting on behalf of the Local Taxpayer
Advocate.
Ms. Laurent called appellant to her office around 11:45 a.m. Appellant came to the office
and they discussed what had transpired in the case. Ms. Laurent stated that it was a closed-door
meeting for privacy and so as not to disturb others in the office. During the meeting,
Ms. Krobert told appellant to remove his personal comments from the TAMIS history because
the information was not relevant to resolving the taxpayer’s problem. Appellant stated that he
was not going to remove the history. As the conversation continued, appellant stated that he was
stressed and had to leave. Appellant informed Ms. Laurent that he was on his way out to lunch
when he received her call. Ms. Laurent told appellant that had she known about his lunch plans
they could have met when he returned. Ms. Laurent stated that appellant became belligerent and
she and Ms. Krobert advised him several times to calm down, go to lunch and relax. At first,
appellant refused to leave and told them that they did not understand how stressed he had
become. Ms. Krobert told appellant that if he left the office he would need to provide
documentation. Although the office door was initially closed, at some point during the meeting
appellant opened the door and Ms. Krobert closed it again. Ms. Laurent explained that appellant
had become loud and they did not want to disturb other employees. She stated that appellant
claimed that Ms. Krobert assaulted him after she brushed his arm as she tried to close the door.
Ms. Laurent was unable to make appellant understand that the taxpayer was upset by his
conversation with appellant. Appellant claimed that the taxpayer’s anger had nothing to do with
him and blamed management for keeping the taxpayer’s case open. Ms. Laurent stated that

5

appellant again stated that he needed to leave. She could see by that point that he was very
stressed by the conversation. Ms. Krobert asked appellant if he had any more telephone contacts
left for the day. Appellant confirmed that he still had work to complete and asked her if she
wanted him to talk to taxpayers. Ms. Krobert advised appellant to send a letter instead.
Ms. Laurent noted that he became progressively louder and leaned forward in an aggressive
manner, stating: “Do I need to show you how stressed I am?” Ms. Krobert replied no.
Appellant then asked Ms. Krobert if she could feel his pain. Ms. Krobert again replied no.
Ms. Laurent and Ms. Krobert realized it was in everyone’s best interest if appellant left, so
Ms. Krobert approved leave for the remainder of the day.
Appellant submitted medical evidence in support of the claim from Dr. Townsend. On
March 26, 2007 Dr. Townsend released appellant to return to work effective March 27, 2007.
He did not provide a diagnosis, but noted that appellant required a reduced inventory. On
April 23, 2007 Dr. Townsend advised that appellant was incapacitated due to medication from
April 18 to 20, 2007 and remained incapacitated. He recommended that appellant be released
from his duties for eight weeks through June 15, 2007. On July 12, 2007 Dr. Townsend stated
that appellant should work part time, four hours per day, beginning August 6, 2007. He advised
that the restriction would remain in effect until further notice.
In a September 18, 2007 attending physician’s report, Dr. Townsend diagnosed posttraumatic stress disorder (PTSD). He identified February 16, 2007 as the date of injury and also
noted a “past history of depression.” Dr. Townsend stated that appellant’s condition was caused
by a supervisor assaulting him on February 16, 2007. Dr. Townsend advised that appellant
would return to full-time employment when he was able but was totally disabled as of
August 14, 2007.
The record includes medical records dating back to 1993 for treatment of anxiety, jobrelated stress, depression, adjustment disorder, situational disturbance and insomnia.
Dr. Townsend previously treated appellant on March 28, 2006 for adjustment issues related to
Hurricane Katrina.
Upon receipt of Dr. Townsend’s recommendation of a reduced work inventory in
March 2007, the employing establishment referred the matter to the Department of Health &
Human Services, FOH Service. In a March 28, 2007 report, Dr. Christopher S. Holland, an
occupational medicine consultant, stated that appellant’s depression, as diagnosed by
Dr. Townsend, did not appear to meet the criteria for a disability under the Rehabilitation Act.
Although the employer was not obligated to provide accommodation, Dr. Townsend’s
recommendation for a temporary reduction in appellant’s work inventory made good medical
sense.
By decision dated February 19, 2008, the Office denied appellant’s emotional condition
claim finding that he failed to establish a compensable employment factor.
Appellant requested an oral hearing, which was held on July 22, 2008. At the hearing, he
claimed that an increased workload contributed to his stress. In October 2005, the employing
establishment implemented a nationwide inventory balancing program whereby they tried to
assign every taxpayer advocate the same number of cases. Appellant testified that his office in

6

Louisiana normally had a low inventory, but the workload increased with cases from outside the
Louisiana area. The taxpayer who allegedly threatened appellant on February 15, 2007 was an
inventory balancing case from Minnesota.4
Following the hearing, appellant submitted evidence pertaining to a grievance over the
increased caseloads. It was noted that the average caseload increased from 20.3 to 86.1 cases
and there were almost 300 fewer case advocates employed in December 2007 than in
October 2003.
In a March 13, 2008 report, Dr. Mark Frank, a Board-certified internist and FOH
occupational medicine consultant, addressed appellant’s February 22, 2008 request for
reasonable accommodation by a detail or reassignment to a new manager. Dr. Frank spoke to
Dr. Townsend and noted that appellant’s request was not related to a substantial limitation in a
major life activity. On March 28, 2008 Dr. Frank reiterated that appellant did not appear to be
qualified for his current position as he was unable to function well behaviorally and cognitively
during periods of significant stress resulting from a high work demand, monitoring of his work,
high expectations and adversarial interactions with coworkers and clients. Dr. Frank explained
that appellant had unsuccessful behavioral and cognitive functioning around supervisors,
managers, coworkers and taxpayers.
In a July 22, 2008 report, Dr. Townsend explained that he was writing to clarify the
relationship between appellant’s work and his elevated and pathological level of stress.
Appellant fulfilled the diagnostic criteria for PTSD “as a result of an interaction with his
supervisor which he perceived as dangerous and harmful.” Dr. Townsend noted that appellant
suffered from intrusive recollections of the event, avoidance of situations in which this could
occur again and generally increased anxiety. He explained that the avoidance associated with
appellant’s PTSD negatively affected his ability to perform his customary and usual job because
he would have had to interact with the supervisor who had caused the trauma. Appellant also
found it particularly difficult to efficiently resolve conflicts with taxpayers.
In an October 3, 2008 decision, the Office hearing representative found that appellant’s
increased workload beginning in 2006 was a compensable factor. However, the claim was
denied because the medical evidence was not sufficient to relate his medical condition to his
increased workload.
Appellant requested reconsideration. In a report dated October 31, 2008, Dr. Townsend
stated that appellant’s workload had increased in early 2006, causing the symptoms previously
described and documented. Appellant was also required to work cases for other employees who
were out of the office. According to appellant, his increased workload was causally related to
the development of his condition, which in turn contributed to the negative encounters he
experienced with both taxpayers and managers. Dr. Townsend reiterated that appellant first
experienced significant symptoms in 2006.
By decision dated April 8, 2009, the Office denied modification of the October 3, 2008
decision.
4

As to the alleged threat, appellant testified that he “may have misunderstood what [the taxpayer] stated....”

7

LEGAL PRECEDENT
To establish that he sustained an emotional condition causally related to factors of his
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.6 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.7 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting his allegations with probative and reliable evidence.8 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter, the Office must base its decision on an analysis of the medical evidence.9
ANALYSIS
When he initially filed his claim appellant alleged that his psychiatric condition arose as a
result of meetings and discussions with management on or after February 16, 2007. However,
when the case was subsequently pending before the Branch of Hearings and Review, appellant
claimed that the increased workload contributed to his stress. He provided evidence indicating
that over a four-and-half-year period ending in May 2008, the average workload increased from
20.3 to 86.1 cases. Most of the increase occurred between December 2007 and May 27, 2008
when the national average rose from 38.9 to 86.1 cases. According to Ms. Krobert, appellant had
an inventory of 49 cases as of March 15, 2007, which was higher than the national average at
that time. An emotional reaction to a situation in which an employee is trying to meet his
position requirements is compensable.10 Additionally, employment factors such as an unusually
heavy workload and the imposition of unreasonable deadlines are covered under the Federal
Employees’ Compensation Act.11 The hearing representative found that appellant’s increased
5

See Kathleen D. Walker, 42 ECAB 603 (1991).

6

Pamela D. Casey, 57 ECAB 260, 263 (2005).

7

Lillian Cutler, 28 ECAB 125, 129 (1976).

8

Kathleen D. Walker, supra note 5.

9

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

10

Robert Breeden, 57 ECAB 622, 627 (2006).

11

Id.

8

workload represented a compensable employment factor. However, appellant’s other allegations
were either unsubstantiated or did not represent compensable employment factors.
Appellant characterized his February 16, 2007 meeting with Ms. Laurent and
Ms. Krobert as being “held hostage through verbal and physical restraints....” Verbal altercations
and difficult relationships with supervisors, when sufficiently detailed and supported by the
record, may constitute compensable factors of employment.12 For appellant to prevail on his
claim, he must support his allegations with probative and reliable evidence.13
There is nothing in the record to substantiate appellant’s claim that he was held hostage
by either Ms. Laurent or Ms. Krobert. The three had a closed-door meeting on February 16,
2007 to discuss comments appellant placed in TAMIS. During the meeting he received
instructions to remove certain information, but refused to comply. The office door was closed to
insure privacy and not for purposes of physically restraining appellant. Both Ms. Laurent and
appellant indicated that Ms. Krobert closed the office door after appellant attempted to open it,
and in the process she touched or brushed against appellant’s hand or arm. There is no indication
that Ms. Krobert intended to harm appellant or that she was even physically capable of
restraining him. Her actions were apparently intended to maintain the privacy of their ongoing
discussion. Ms. Laurent indicated that during the February 16, 2007 meeting appellant became
very belligerent and she and Ms. Krobert advised him several times to calm down, go to lunch
and relax. Ms. Laurent stated that at first appellant refused to leave. She also noted that, during
a conversation the previous day, appellant similarly refused to leave the office when requested.
Appellant was troubled by what he perceived to be an improper order from Ms. Krobert
to remove his comments from TAMIS. He essentially blamed Ms. Laurent for the taxpayer’s
dissatisfaction. Appellant added this information in TAMIS and was subsequently told to
remove it because the information was not relevant to resolving the taxpayer’s problem. Far
from being held hostage, appellant’s February 16, 2007 conversation with Ms. Krobert and
Ms. Laurent was prolonged in large part because he refused to comply with Ms. Krobert’s
request and continued to press the matter as to why his actions were appropriate. Appellant’s
objection to Ms. Krobert’s directive to remove the information from TAMIS is not compensable.
Work assignments are administrative in nature, and absent evidence of error or abuse, such
assignments are noncompensable.14 Appellant has not demonstrated error or abuse with respect
to Ms. Krobert’s February 16, 2007 directive.
Appellant also took exception to a counseling memorandum he received on
March 8, 2007. This memorandum pertained to his behavior on February 16, 2007, and
particularly his refusal to obey Ms. Krobert’s directive to remove inappropriate information from
12

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

13

See Kathleen D. Walker, supra note 5.

14

Jeral R. Gray, 57 ECAB 611, 616 (2006). An employee’s emotional reaction to administrative or personnel
matters generally falls outside the scope of the Act. Andrew J. Sheppard, 53 ECAB 170, 173 (2001). However, to
the extent the evidence demonstrates that the employing establishment either erred or acted abusively in discharging
its administrative or personnel responsibilities, such action will be considered a compensable employment factor.
Id.

9

TAMIS. Disciplinary actions are administrative in nature.15 Again, appellant has not
demonstrated any error or abuse on Ms. Krobert’s part in issuing the March 8, 2007 counseling
memorandum.16
On March 13, 2007 Ms. Lewis, a supervisor, allegedly raised her voice while speaking
with appellant. As previously noted, verbal altercations and difficult relationships with
supervisors, when sufficiently detailed and supported by the record, may constitute compensable
factors of employment.17 In this instance, however, appellant has not provided sufficient detail
regarding the alleged March 13, 2007 incident with Ms. Lewis.
Appellant identified two other incidents that fall within the category of work
assignments. On March 16, 2007 Ms. Krobert and Ms. Lewis reportedly told him to stop
working on his TIGTA timeline and resume working his regular cases. Appellant also
challenged Ms. Krobert’s decision to assign him additional cases beginning April 23, 2007. His
inventory had been reduced to 28 cases as of April 13, 2007 and Ms. Krobert advised that she
would begin assigning additional cases on April 23, 2007. Again, work assignments are
administrative in nature, and absent evidence of error or abuse, such assignments are
noncompensable.18 Assuming arguendo that the March 16, 2007 incident occurred as alleged,
appellant has not demonstrated that the directive to resume his regular work was erroneous or
abusive. With respect to the proposed case assignment, it appears not to have been fully
implemented because appellant took an eight-week leave of absence beginning April 24, 2007.
Moreover, appellant has not demonstrated that the proposed increase was either erroneous or
abusive.
Appellant also noted dissatisfaction with the mid-year performance appraisal he received.
Performance ratings are administrative matters and not compensable absent a showing of error or
abuse on the part of the employing establishment.19 Appellant’s mid-year appraisal was delayed
because of his eight-week leave of absence, which ended on June 15, 2007. Because of his
prolonged absence, the July 17, 2007 mid-year appraisal included information beyond the normal
six-month period it would have otherwise covered. Appellant has not demonstrated error or
abuse in this instance. Consequently, any emotional reaction to the July 17, 2007 mid-year
appraisal would not be compensable.
On August 13, 2007 Ms. Laurent advised appellant that additional LWOP would not be
approved until he submitted appropriate medical documentation. Although time and attendance
issues are generally related to the employment, they are administrative functions of the employer
15

Charles D. Edwards, 55 ECAB 258, 266 (2004).

16

Appellant also received an August 10, 2007 letter of admonishment for disrespectful and unprofessional
conduct. Although he did not identify this specific letter as a contributing factor to his psychiatric condition, it too
constitutes a noncompensable disciplinary action.
17

Marguerite J. Toland, supra note 12.

18

Jeral R. Gray, supra note 14.

19

David C. Lindsey, Jr., 56 ECAB 263, 271-72 (2005).

10

and not duties of the employee.20 Appellant received LWOP from August 6 to 10, 2007.
Ms. Laurent explained that the documentation appellant provided did not indicate a diagnosis,
prognosis, or include any information regarding a possible return-to-work date. After the
employing establishment’s efforts to obtain clarification proved unsuccessful, Ms. Laurent
informed appellant that further LWOP would not be approved until additional medical
documentation was received. She also advised appellant that he would be placed on absent
without leave for any and all unapproved absences. Appellant has not demonstrated that
Ms. Laurent’s handling of his leave request was either erroneous or abusive. Although
Dr. Townsend advised appellant to work part time beginning August 6, 2007, his July 12, 2007
note provided very little information regarding appellant’s medical condition. Accordingly,
Ms. Laurent’s refusal to approve additional LWOP is not compensable.
Appellant established a compensable employment factor -- his increased workload.
However, he must also submit rationalized medical opinion evidence to establish that his
emotional condition is causally related to the compensable employment factor.21 Between March
and July 2007 appellant’s psychiatrist, Dr. Townsend, provided three form reports regarding
appellant’s ability to work. Effective March 27, 2007, he released appellant to return to work
with a reduced inventory. On April 23, 2007 Dr. Townsend indicated that appellant had been
incapacitated since April 18, 2007 and recommended that appellant be released from his duties
for eight weeks through June 15, 2007. After returning from an eight-week leave of absence,
Dr. Townsend recommended that appellant work four hours a day effective August 6, 2007.
None of these form reports provided a factual history of the accepted factor, a specific diagnosis
or any other relevant findings regarding the basis for Dr. Townsend’s recommended work
restrictions. Consequently, this evidence is insufficient to establish that appellant’s increased
workload caused or contributed to his claimed emotional condition.
Dr. Townsend’s September 18, 2007 attending physician’s report is also insufficient to
establish the claim. It provided a diagnosis of PTSD with a past history of depression. However,
Dr. Townsend made no mention of any increased workload as the cause of the reported
February 16, 2007 injury. Rather, he stated that appellant’s condition was caused by a supervisor
assaulting him on February 16, 2007. Dr. Townsend provided similar rationale in a July 22,
2008 report, noting that appellant fulfilled the diagnostic criteria for PTSD “as a result of an
interaction with his supervisor which he perceived as dangerous and harmful.” Dr. Townsend
advised that appellant had intrusive recollections of the event, avoidance of situations in which
this could occur again, and generally increased anxiety which negatively affected his ability to
perform his usual job. Dr. Townsend did not attribute appellant’s PTSD and reported avoidance
behavior to an increased workload.
20

Joe M. Hagewood, 56 ECAB 479, 488 (2005).

21

Charles D. Gregory, 57 ECAB 322, 328 (2006). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s 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.

11

In an October 31, 2008 report, Dr. Townsend clarified that appellant’s condition had
developed earlier in 2006 when his workload increased causing the symptoms previously
described and documented. He also stated that appellant was required to work cases for other
absent employees. Dr. Townsend stated that the increased workload was causally related to the
development of appellant’s emotional condition, which in turn contributed to the negative
encounters he experienced with both taxpayers and managers. As noted by the Office, the
October 31, 2008 report did not include a diagnosis of PTSD or other psychiatric condition or
symptoms. This report is not sufficient to establish appellant’s claim as Dr. Townsend did not
adequately explain his opinion on causal relation with reference to his prior reports of record.
Even assuming that Dr. Townsend was referring to his prior diagnosis of PTSD, his
October 31, 2008 report does not explain how an increased workload factored into such a
diagnosis. When he saw appellant on March 28, 2006, he recommended a two-month leave of
absence for treatment of a stress reaction which he attributed to “adjustment issues related to
Hurricane Katrina.” At that time, appellant did not mention any increased workload as a cause
of his condition. The Board finds that Dr. Townsend has not provided a fully rationalized
medical opinion addressing how appellant’s psychiatric condition relates to his accepted
employment factor. The reports from the two FOH consultants, Dr. Holland and Dr. Frank, are
also insufficient to establish appellant’s claim. Dr. Holland did not address the cause of
appellant’s diagnosed depression and Dr. Frank did not provide a diagnosis. Appellant failed to
meet his burden to establish that his emotional condition is causally related to the accepted
employment factor.
CONCLUSION
The Board finds that appellant did not establish that his claimed emotional condition is
causally related to his federal employment.

12

ORDER
IT IS HEREBY ORDERED THAT the April 8, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Portland, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-974
Issued: December 12, 2007

Case Submitted on the Record

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

JURISDICTION
On February 27, 2007 appellant filed a timely appeal from a December 13, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his occupational disease
claim and a January 22, 2007 nonmerit decision denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case and over the January 22, 2007 nonmerit decision.
ISSUES
The issues are: (1) whether appellant has established that he sustained a groin or hip
condition causally related to factors of his federal employment; and (2) whether the Office
properly denied his request for merit review of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On October 27, 2006 appellant, then a 47-year-old transportation security screener, filed
an occupational disease claim alleging that he sustained a groin strain and chronic groin pain due

to factors of his federal employment. He became aware of his condition on December 24, 2004
and attributed it to his employment on March 8, 2005. Appellant related that he returned to work
without restrictions but his condition became worse due to constant lifting and standing.
In a progress report dated October 18, 2006, Dr. Stephen A. Weil, a Board-certified
internist, discussed appellant’s complaints of hip pain. He diagnosed an aggravation of a
previous work injury. Dr. Weil found that appellant should “stay off work because he is making
this worse.”
On October 30, 2006 Dr. Weil diagnosed arthralgia and a possible ilioinguinal ligament
injury. He opined that appellant was unable to work and noted that the physical therapist did not
want him to perform any ambulation.1 In a duty status report of the same date, Dr. Weil
diagnosed an aggravation of a groin injury and opined that appellant was disabled from work.
He checked “yes” that the condition corresponded to the history provided on the form of
appellant’s physical therapist advising appellant that his condition had worsened. In an
October 30, 2006 work restriction evaluation, Dr. Weil diagnosed chronic hip and groin pain and
indicated that he could perform no activities, including walking, sitting or standing.
By letter dated November 7, 2006, the Office requested additional factual and medical
information from appellant in support of his claim, including a detailed medical report from his
attending physician addressing the causal relationship between any diagnosed condition and
employment factors.
In a disability certificate dated November 29, 2006, Dr. Weil asserted that appellant was
unable to work from November 28, 2006 to January 10, 2007. On December 1, 2006 the
employing establishment noted that appellant attributed his current condition to a prior traumatic
injury on December 24, 2004, accepted by the Office for an unspecified disorder of the bone and
cartilage and strain. Appellant further filed a claim for a testicular injury March 4, 2005 which
the Office denied.
In a statement received on December 11, 2006, appellant related that he injured his right
groin on December 22, 2004, assigned file number 142036815 and accepted for a sprain/strain of
the groin. After 30 days he returned to work without restrictions but his condition worsened due
to continually lifting bags, rotating and standing at work.
By decision dated December 11, 2006, the Office denied appellant’s claim on the
grounds that he did not provide factual evidence regarding the employment factors to which he
attributed his condition. In a decision dated December 13, 2006, the Office vacated its
December 11, 2006 decision because it had not considered appellant’s factual statement. The
Office denied the claim on the grounds that the medical evidence was insufficient to establish
that he sustained the claimed condition due to the established work factors.

1

Dr. Mark A. Norling, a Board-certified anesthesiologist, gave appellant a right hip injection on October 10, 2006
and a right ilioinguinal nerve block on October 24, 2006.

2

On January 5, 2007 appellant requested reconsideration. He asserted that he now had a
diagnosis of a torn labrum and that his physician had opined in a January 3, 2007 report that the
condition resulted from lifting and rotating at work.
Appellant submitted an August 23, 2005 report from Dr. Weil who related that he treated
appellant for right hip pain following a December 26, 2004 employment injury. Dr. Weil
asserted that he initially believed that appellant had psoas bursitis but now felt that he had a joint
derangement of some kind related to the original injury. After the first injury, it was thought that
appellant was improving and perhaps he would be able to get back to work. However, in March
2005 there was a recurrence, again necessitating a work stoppage. Dr. Weil indicated that it was
difficult to diagnose appellant’s condition even with objective studies but that “certainly what
happens is that something gets stuck and he just drops and is unable to support his weight on that
hip.” Appellant’s condition improved with medication but was exacerbated with any type of
pivotal rotational activity. Dr. Weil stated:
“I know this is confusing, as it is distressing to us to not be able to pinpoint this to
a larger degree.
However, [appellant] continues to have a similar
symptomatology, the same as he did on the December 26, 2004 injury, which was
reexacerbated further along on March 4, 2005. Again, I offer you the fact that
both of these are the same injury just a reexacerbation and it would appear that
what he does in the course of his daily work with [the employing establishment]
continues to exacerbate and reinjure this particular problem.”
In a report dated December 4, 2006, Dr. Weil diagnosed arthralgia, a right hip
strain/sprain with bursitis and suspected internal derangement of the right hip. He asserted that
the “mechanism of injury and the job activities are consistent with the current symptoms and
aggravation of the original injury” and that the injury “was directly related to the injury of
December 26, 2004 which was exacerbated on March 8, 2005.” Dr. Weil referred to his
August 23, 2005 letter for further information.
By decision dated January 2, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was irrelevant and thus insufficient to
warrant merit review. The Office found that Dr. Weil attributed his condition to a December 26,
2004 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing 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 the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
2

5 U.S.C. §§ 8101-8193.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

3

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion 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.8 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,9 must be one of reasonable medical certainty10 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.11
ANALYSIS -- ISSUE 1
Appellant attributed his right groin and hip condition to lifting and rotating at work. The
Office accepted the occurrence of the claimed employment factors. The issue, therefore, is
whether the medical evidence establishes a causal relationship between the claimed condition
and the identified employment factors.
On October 18, 2006 Dr. Weil noted that appellant complained of hip pain. He
diagnosed an aggravation of a previous work injury and found that he should remain “off work
because he is making this worse.” As Dr. Weil related appellant’s condition to a prior
employment injury, his opinion is insufficient to establish that he sustained a hip condition due to
factors of his federal employment. Further, he did not provide a firm diagnosis of his condition.
4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

4

Without a firm diagnosis supported by medical rationale, Dr. Weil’s report is of little probative
value.12
In a progress report dated October 30, 2006, Dr. Weil diagnosed arthralgia and a possible
ilioinguinal ligament injury. He found that appellant was disabled from employment. In an
accompanying duty status report, Dr. Weil diagnosed an aggravation of a groin injury and
checked “yes” that the condition corresponded to the history provided on the form of appellant’s
physical therapist advising him that his condition had worsened. In an October 30, 2006 work
restriction evaluation, Dr. Weil diagnosed chronic hip and groin pain and indicated that he could
perform no activities, including walking, sitting or standing. In his October 30, 2006 narrative
and form reports, he did not specifically address the cause of appellant’s condition. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.13
In a disability certificate dated November 29, 2006, Dr. Weil indicated that appellant was
unable to work from November 28, 2006 to January 10, 2007. Again, as he did not address
causation, his report is of little probative value.14 Additionally, findings on examination are
needed to justify a physician’s opinion that an employee is disabled for work.15
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.16 He must submit a physician’s report in which the physician reviews those factors
of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.17 Appellant failed to submit such evidence and therefore failed
to discharge his burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
18

12

See Samuel Senkow, 50 ECAB 370 (finding that as a physician’s opinion of Legionnaires disease was not
definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
13

Conrad Hightower, supra note 8.

14

Id.

15

Laurie S. Swanson, 53 ECAB 517 (2002).

16

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

17

Robert Broome, 55 ECAB 339 (2004).

18

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”

5

applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.19 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.20 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.21
The requirements for reopening a claim for merit review do not include the requirement
that a claimant submit all evidence which may be necessary to discharge his burden of proof.22
The requirements pertaining to the submission of evidence in support of reconsideration only
specifies that the evidence be relevant and pertinent and not previously considered by the
Office.23 If the Office should determine that the new evidence submitted lacks substantive
probative value, it may deny modification of the prior decision, but only after the case has been
reviewed on the merits.24
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim on the grounds that the medical evidence was
insufficient to show that he sustained a condition causally related to the established work factors.
With his request for reconsideration, appellant submitted August 23, 2005 and December 4, 2006
medical reports from Dr. Weil. On August 23, 2005 Dr. Weil noted that he began treating
appellant for right hip pain after he sustained a work injury on December 26, 2004. He was
unable to diagnose his exact condition. Appellant improved with treatment and returned to work
but had to again stop work. Dr. Weil opined that appellant’s problem was a reexacerbation of his
earlier injury and that “it would appear that what he does in the course of his daily work with
[the employing establishment] continues to exacerbate and reinjure this particular problem.”
In a report dated December 4, 2006, Dr. Weil diagnosed arthralgia, a right hip strain or
sprain with bursitis and possible right hip internal derangement. He related that the “mechanism
of injury and the job activities are consistent with the current symptoms and aggravation of the
original injury” and that the injury “was directly related to the injury of December 26, 2004
which was exacerbated on March 8, 2005.”
In its January 27, 2007 decision, the Office found that appellant did not submit sufficient
medical evidence to warrant a merit review of his claim. The Office indicated that Dr. Weil
19

20 C.F.R. § 10.606(b)(2).

20

20 C.F.R. § 10.607(a).

21

20 C.F.R. § 10.608(b).

22

Donald T. Pippin, 53 ECAB 631 (2003).

23

Id.

24

See Annette Louise, 53 ECAB 783 (2003).

6

addressed only a December 26, 2004 employment injury. Dr. Weil’s August 23, 2005 and
December 4, 2006 reports, however, are relevant to the issue of whether appellant sustained a
condition causally related to employment factors and were not previously of record. While he
attributed appellant’s right hip problems and arthralgia in part to a prior employment injury, he
also found that work factors exacerbated his condition.25
In order to require merit review, it is not necessary that the new evidence be sufficient to
discharge appellant’s burden of proof. Instead, the requirement pertaining to the submission of
evidence in support of reconsideration only specifies that the evidence be relevant and pertinent
and not previously considered by the Office.26 As Dr. Weil’s August 23, 2005 and December 4,
2006 reports constituted new and relevant medical evidence, the Board finds that the Office
improperly denied his request for review of the merits of the claim. The case will be remanded
to the Office to conduct an appropriate merit review of the claim. Following this and such other
development as deemed necessary, the Office shall issue a merit decision on the claim.27
CONCLUSION
The Board finds that appellant has not established that he sustained a groin or hip
condition causally related to factors of his federal employment. The Board further finds that the
Office improperly denied reopening his case for further review of the merits of his claim under
5 U.S.C. § 8128.

25

An occupational disease is defined as a condition produced by the work environment over a period longer than
a single workday or shift.” 20 C.F.R. § 10.5(q).
26

See Donald T. Pippin, supra note 22.

27

Subsequent to the Office’s January 22, 2007 decision, appellant submitted new medical evidence. The Board
has no jurisdiction to review new evidence on appeal; see 20 C.F.R. § 501.2(c).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2007 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board. The decision dated December 13, 2006 is
affirmed.
Issued: December 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 11-123
Issued: September 15, 2011

Case Submitted on the Record

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

JURISDICTION
On October 19, 2010 appellant timely appealed the June 3, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
July 30, 2007.
FACTUAL HISTORY
Appellant, a 55-year-old distribution clerk, filed a traumatic injury claim (Form CA-1)
alleging that she injured her lower back in the performance of duty on July 30, 2007. She
claimed to have injured herself while attempting to remove a parcel from an all-purpose
1

5 U.S.C. §§ 8101-8193 (2006).

container (APC). Appellant described her injury as “lower back pain.” Her employer challenged
the claim on the basis that she never lifted the package. The employing establishment further
indicted that there was no reason for appellant to even move the package because it was already
in an APC that was headed out for dispatch.
On August 1, 2007 appellant sought treatment at the Providence Hospital emergency
department. Her chief complaint was lower back pain, which she attributed to a July 30, 2007
employment incident where she “tried to lift an object....” Appellant received a diagnosis of low
back pain and was discharged later that afternoon. An August 1, 2007 x-ray of the lumbar spine
revealed mild scoliosis, mild degenerative disease, mild sclerosis in the sacroiliac joints and a
small density that was most likely a renal stone.
Appellant subsequently came under the care of Dr. Easton L. Manderson, a Boardcertified orthopedic surgeon, whose August 29, 2007 progress notes included a diagnosis of
lumbar strain. Dr. Manderson excused her from work and referred her to physical therapy
beginning September 5, 2007. Appellant’s diagnoses included lumbar strain and lumbar
degenerative disc disease. Dr. Manderson’s September 19, 2007 progress notes similarly
included a diagnosis of strain. He also questioned whether appellant had a herniated disc.
Dr. Manderson’s October 31, 2007 progress notes referenced a magnetic resonance imaging
(MRI) scan that reportedly revealed a disc extrusion at L5-S1. His November 25, 2007 progress
notes included a diagnosis of herniated nucleus pulposus (HNP) at L5-S1.
In a decision dated December 28, 2007, OWCP denied appellant’s claim because she
failed to establish fact of injury. Appellant had not demonstrated that the incident occurred as
alleged. OWCP also found that the medical evidence, which included a diagnosis of lumbar
strain, did not include a history of injury or a discussion on causal relationship.
On January 29, 2008 appellant requested reconsideration.2
Appellant submitted a November 29, 2007 statement. She explained that she had been
scanning parcels and the box was the last piece in the APC. Appellant pulled the box closer to
her so she could safely pull it up. However, as she pulled it to the front of the APC she realized
the box was too heavy to lift alone. Appellant asked a coworker to assist her. She estimated the
box weighed over 50 pounds. Appellant indicated that she did not feel pain until the end of the
following day. She also reported having previously injured her back in a July 1987 motor
vehicle accident (xxxxxx671).3 Appellant reportedly returned to full duty without restrictions in
June 1999.
Delvin L. Johnson, appellant’s coworker, provided a December 19, 2007 statement
confirming that on July 30, 2007 appellant asked him to help her lift a heavy box out of an APC.

2

Appellant had previously requested a review of the written record which the Branch of Hearings & Review
denied as untimely.
3

Appellant also sustained an employment-related injury on December 31, 1987, which OWCP accepted for
cervical disc displacement (25-0320058).

2

He provided the requested assistance. Mr. Johnson also stated that the box was heavy, but he
could not say how much it weighed.
In addition to the above-noted statements, OWCP received various medical reports
following the December 28, 2007 denial of the claim. The additional evidence included a
physician’s referral form, several medical reports and progress notes from Dr. Manderson and an
October 25, 2007 lumbar MRI scan.
On August 2, 2007 Dr. Robert H. Williams, a Board-certified family practitioner, referred
appellant for treatment of acute lumbar muscular strain.
In an August 17, 2007 report, Dr. Manderson noted that he examined appellant on
August 15, 2007 for complaints of low back pain with radicular symptoms into her legs. He
stated that she reportedly injured herself at work on July 31, 2007, when she was working with
an APC and she reached to remove a box and hurt her back. Dr. Manderson noted that appellant
went to the emergency room on August 1, 2007 and her x-rays were apparently negative.
Objective findings included moderate tenderness to palpation bilaterally over the iliolumbar
intervals.
Appellant’s straight leg raising test was negative in the sitting position.
Dr. Manderson also noted that she was able to ambulate independently, but she used a cane. His
assessment was lumbar strain superimposed upon mild degenerative changes of the lumbar
spine.
An October 25, 2007 lumbar MRI scan revealed a small right foraminal disc extrusion at
L5-S1, which was likely the source of appellant’s right-sided radicular symptoms. There was
also evidence of a mild disc bulge at L4-5 and multi-level facet hypertrophy, most pronounced at
L3-4, L4-5 and L5-S1.
In a December 19, 2007 report, Dr. Manderson noted that appellant had a herniated
lumbar disc and was presently undergoing lumbar epidural blocks.
In a handwritten note dated January 29, 2008, Dr. Manderson indicated that on July 31,
2007 appellant was trying to remove a heavy object from an APC and suffered an injury to her
lower back.4 Appellant subsequently had severe right lower extremity pain and was unable to sit
without great discomfort. Dr. Manderson further indicated that her objective and subjective
signs and symptoms were consistent with a herniated lumbar disc as confirmed by MRI scan.
By decision dated May 5, 2009, OWCP affirmed the December 28, 2007 denial of the
claim, but modified the prior decision to reflect that appellant’s claim was denied based on a
failure to establish causal relationship. It found that she established that the July 30, 2007
employment incident occurred as alleged. However, the medical evidence was insufficient to
establish a causal relationship between the diagnosed conditions and the accepted employment
incident.
On March 6, 2010 appellant requested reconsideration. OWCP subsequently received a
January 31, 2008 report from Dr. Steven C. Scherping, a Board-certified orthopedic surgeon,
4

Dr. Manderson mistakenly dated his report “January 29, 2007” rather than 2008.

3

who diagnosed lumbar disc herniation with associated radiculopathy.
Dr. Scherping
recommended obtaining a new MRI scan and an electromyography and nerve conduction study.
He noted that appellant had a history of diabetes and thought it appropriate to rule out any
associated neuropathy/peripheral nerve disorder. Dr. Scherping indicated that she reported
having developed acute severe pain in her low back following a late July 2007 incident when she
“was lifting a box.” He did not otherwise attribute appellant’s diagnosed lumbar condition to a
specific cause.
By decision dated June 3, 2010, OWCP denied modification of the May 5, 2009 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA 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.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” is established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a
personal injury.7
ANALYSIS
OWCP accepted that the July 30, 2007 employment incident occurred as alleged.
However, it denied appellant’s claim on the basis that the medical evidence did not establish a
causal relationship between the accepted employment incident and the diagnosed lumbar
conditions, which included lumbar strain and herniated disc at L5-S1. The Board finds that the
record, particularly Dr. Manderson’s August 17, 2007 report, establishes that she sustained a
lumbar strain in the performance of duty on July 30, 2007. Dr. Manderson examined appellant
on August 15, 2007 for complaints of low back pain with radicular symptoms. Although he
mistakenly identified the date of injury as July 31, 2007 rather than July 30, 2007, he reported an
otherwise accurate history of injury noting that she had been working with an APC when she
reached to remove a box and hurt her back. Dr. Manderson also correctly noted that appellant
5

20 C.F.R. § 10.115(e), (f) (2010); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question, which generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s 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.

4

went to the emergency room on August 1, 2007. He diagnosed lumbar strain superimposed upon
mild degenerative changes of the lumbar spine.
This diagnosis is consistent with
Dr. Manderson’s own examination findings and appellant’s August 1, 2007 lumbar x-ray, which
revealed mild degenerative disease. Accordingly, appellant’s claim is accepted for lumbar strain.
The current record, however, does not support acceptance of the claim for herniated disc
at L5-S1. While the diagnosis is supported by the record, particularly the October 25, 2007
lumbar MRI scan, there is insufficient evidence to establish that this condition is causally related
to the July 30, 2007 employment incident. Dr. Manderson’s January 29, 2008 report ostensibly
links appellant’s lumbar herniated disc to her employment injury, however, he did not provide
adequate rationale to support causal relationship. There is no clear explanation of how
Dr. Manderson purportedly distinguished the July 30, 2007 employment incident from the
normal age-related degenerative process. While it is arguable that the July 30, 2007 employment
incident aggravated a previously asymptomatic lumbar degenerative disc disease, Dr. Manderson
provided no discussion in this regard. A physician’s 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.8 Dr. Manderson’s January 29, 2008 report does not rise to this level. Thus,
the record does not establish that appellant’s L5-S1 herniated disc was either directly caused or
aggravated by the July 30, 2007 employment incident.
CONCLUSION
Appellant established that she sustained a lumbar strain in the performance of duty on
July 30, 2007. Accordingly, OWCP’s June 3, 2010 decision is modified to reflect lumbar strain
as an accepted condition.

8

Victor J. Woodhams, id.

5

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2010 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: September 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cherry Hill, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-729
Issued: October 14, 2011

Case Submitted on the Record

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

JURISDICTION
On January 31, 2011 appellant filed a timely appeal from a November 9, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award. Pursuant
to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established more than a 30 percent impairment of the left
arm or a 5 percent impairment of the right arm, for which she received schedule awards.
On appeal, counsel asserts that OWCP unduly delayed processing appellant’s schedule
award claim; her schedule award claim under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) and not under
the earlier fifth edition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before August 13, 2004 appellant, then a 48-year-old letter
carrier, sustained enesopathy of the wrist and carpus, bilateral carpal tunnel syndrome and
generalized osteoarthritis of the left thumb due to repetitive hand and wrist motions while casing
and delivering mail.
Appellant was first followed by Dr. Tony K. Soble, an attending Board-certified family
practitioner, who noted bilaterally positive Tinel’s and Phalen’s signs and bilateral thumb
weakness on September 9, 2004. Dr. Evan Sorokin, an attending Board-certified plastic surgeon,
obtained July 1, 2006 x-rays showing osteophytes in the margins of the carpometacarpal joint of
the left thumb.
Dr. John M. Bednar, an attending Board-certified orthopedic surgeon, specializing in the
surgery of the hand, treated appellant beginning on July 14, 2006. He diagnosed degenerative
joint disease of the carpometacarpal joint of the left thumb and bilateral carpal tunnel syndrome
with a neuropraxic left radial sensory lesion by electromyography and nerve conduction velocity
studies. On November 1, 2006 Dr. Bednar performed a left median nerve release, soft tissue
arthroplasty of the left thumb and tendon transfer of the left wrist. He released appellant to full
duty with no restrictions effective March 12, 2007. Appellant continued working light duty
through September 2007 and onward.
On December 3, 2007 appellant claimed a schedule award. She submitted an August 14,
2007 report from Dr. Steven M. Allon, an orthopedic surgeon, who provided a history of injury
and treatment and found that appellant had reached maximum medical improvement. Dr. Allon
related her account of difficulty with activities of daily living. Appellant noted pain at 2/20 in
the right hand and 3/10 on the left. On examination of both wrists Dr. Allon found tenderness to
palpation, positive Tinel’s and Phalen’s signs and restricted motion. Regarding the left wrist, he
noted surgical scars, zero strength with thumb opposition and +1 apposition strength of the
thumb and fifth finger. Grip strength testing via Jamar hand dynamometer at Level 3 showed
34.5 kilogram (kg) on the right and 26 kg on the left. Pinch key testing showed five kg on the
right and four kg on the left. Dr. Allon found monofilament testing at 4.56 millimeter (mm) on
the right and 4.81 mm on the left, demonstrating diminished light touch sensation in both hands.
He diagnosed cumulative and repetitive trauma disorder, degenerative arthritis of the
carpometacarpal joint of the left thumb, bilateral carpal tunnel syndrome and postsurgical status.
Referring to Tables 16-33 and 16-34 of the fifth edition of the A.M.A., Guides2 Dr. Allon found
a 10 percent impairment of each upper extremity for lateral pinch deficit and a 31 percent
impairment of each upper extremity for grade 2 sensory deficit in the median nerve according to

2

Table 16-33, page 509 of the fifth edition of the A.M.A., Guides is entitled “Average Strength of Lateral Pinch
by Occupation in 100 Subjects.” Table 16-34, page 509 of the fifth edition of the A.M.A., Guides is entitled “Upper
Extremity Joint Impairment Due to Loss of Grip or Pinch Strength.”

2

Tables 16-10 and 16-15.3 Dr. Allon combined these impairments to equal a 38 percent
impairment of each upper extremity.
In a September 29, 2008 letter, counsel requested a status update on appellant’s schedule
award claim as no action had yet been taken on Dr. Allon’s impairment rating.
On October 28, 2008 OWCP referred a statement of accepted facts and the medical
record to an OWCP medical adviser for calculation of a schedule award regarding the left upper
extremity. In a November 1, 2008 report, the medical adviser concurred with Dr. Allon’s
assessment of a 38 percent impairment of each upper extremity due to lateral pinch strength
deficit and median nerve sensory deficit.
In a March 11, 2009 letter, counsel requested a status update regarding the schedule
award claim.
In a September 29, 2009 letter, OWCP advised appellant to submit an impairment rating
from her attending physician using the sixth edition of the A.M.A., Guides in effect as of
May 1, 2009. Appellant was afforded 30 days to submit this report.
In a November 5, 2009 letter, appellant submitted Dr. Allon’s revised report applying the
sixth edition of the A.M.A., Guides to his August 14, 2007 findings. Referring to Table 15-234
of the A.M.A., Guides, he noted a diagnosis (CDX) of entrapment neuropathy of the left median
nerve. Dr. Allon found a grade modifier Clinical Studies (GMCS) of 1, a grade modifier for
Functional History (GMFH) of 2 and a grade modifier Physical Examination (GMPE) of 2. He
averaged these modifiers at grade 2, equaling a five percent impairment of the left upper
extremity. Referring to Table 15-2,5 Dr. Allon noted a class 3 diagnosis based impairment
(CDX) for left thumb carpometacarpal arthroplasty. He assigned a GMFH of 2 according to
Table 15-7,6 a GMPE of 2 according to Table 15-8 and a GMCS of 2 according to Table 15-9.7
Using the net adjustment formula of (GMFH - CDX) + (GMPE - DCX) + (GMCS - CDX),
Dr. Allon found a net adjustment of negative three, equaling a 26 percent impairment of the left
upper extremity. He combined the 26 and 5 percent impairments to total a 30 percent
impairment of the left upper extremity. Regarding the right upper extremity, Dr. Allon found
3

Table 16-10, page 482 of the fifth edition of the A.M.A., Guides is entitled “Determining Impairment of the
Upper Extremity Due to Sensory Deficits or Pain Resulting from Peripheral Nerve Disorders.” Table 16-15, page
492 of the fifth edition of the A.M.A., Guides is entitled “Maximum Upper Extremity Impairment Due to Unilateral
Sensory or Motor Deficits or to Combined 100 percent Deficits of the Major Peripheral Nerves.”
4

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”
5

Table 15-2, page 394 of the sixth edition of the A.M.A., Guides is entitled “Digit Regional Grid: Digit
Impairments.”
6

Table 15-7, page 406 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment:
Upper Extremities.”
7

Table 15-9, page 410 of the sixth edition of the A.M.A., Guides is entitled “Clinical Studies Adjustment: Upper
Extremities.”

3

five percent impairment for right median nerve entrapment, using the same calculation method as
he did in assessing entrapment of the left median nerve.
In a December 14, 2009 report, an OWCP medical adviser agreed with Dr. Allon’s rating
of a 30 percent impairment of the left arm and a 5 percent impairment of the right arm. The
medical adviser found that Dr. Allon correctly applied the appropriate portions of the sixth
edition of the A.M.A., Guides to his clinical findings.
By decision dated July 12, 2010, OWCP issued appellant schedule awards for a 30
percent impairment of the left upper extremity and a 5 percent impairment of the right upper
extremity. The period of the awards ran from August 14, 2007 to September 16, 2009.
In a July 26, 2010 letter, appellant, through counsel, requested a review of the written
record. Counsel asserted that OWCP failed to issue a timely schedule award, depriving her of
her due process rights and FECA benefits under the fifth edition of the A.M.A., Guides.
By decision dated and finalized November 9, 2010, an OWCP hearing representative
affirmed the July 12, 2010 schedule award decision. The hearing representative found that
OWCP was not held to any specific timeframe for issuing schedule awards.
LEGAL PRECEDENT
The schedule award provisions of FECA8 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a mater which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.9 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE

8

5 U.S.C. § 8107.

9

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, “The ICF, Disability and Health: A Contemporary Model
of Disablement.”

4

and GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - DCX) + (GMCS CDX).
ANALYSIS
OWCP accepted that appellant sustained enesopathy of the wrist and carpus, bilateral
carpal tunnel syndrome and generalized osteoarthritis of the left thumb. Appellant claimed a
schedule award on December 3, 2007. In support of her claim, she submitted an August 14,
2007 report from Dr. Allon, an orthopedic surgeon. Using the fifth edition of the A.M.A.,
Guides then in effect, Dr. Allon calculated a 38 percent impairment of each upper extremity due
to lateral pinch strength deficit and median nerve impairment. An OWCP medical adviser
concurred with his impairment rating on November 1, 2008.
On September 29, 2009 OWCP requested that appellant submit an updated impairment
rating utilizing the sixth edition of the A.M.A., Guides, in effect as of May 1, 2009. On
November 5, 2009 appellant submitted Dr. Allon’s revised report according to the sixth edition
of the A.M.A., Guides. Dr. Allon found a 30 percent impairment of the left upper extremity due
to carpometacarpal arthroplasty of the left thumb and entrapment of the left median nerve. He
also found a five percent impairment of the right upper extremity due to median nerve
entrapment. An OWCP medical adviser concurred with Dr. Allon’s impairment rating and his
application of the A.M.A., Guides. Therefore, OWCP issued a July 12, 2010 schedule award for
a 30 percent impairment of the left upper extremity and a 5 percent impairment of the right upper
extremity. It affirmed the schedule award by November 9, 2010 decision.
The Board finds that Dr. Allon applied the appropriate portions of the A.M.A., Guides to
his clinical findings. Dr. Allon’s mathematical calculations are correct. Also, there is no
medical evidence of record utilizing the sixth edition of the A.M.A., Guides supporting a greater
percentage of permanent impairment. The Board notes that counsel does not contest the
correctness of the impairment rating or of OWCP medical adviser’s interpretation of Dr. Allon’s
findings. Therefore, OWCP’s November 9, 2010 schedule award determination is correct under
the law and facts of this case.
On appeal, counsel asserts that OWCP unduly delayed processing appellant’s schedule
award claim. The Board finds that there is no evidence of record that OWCP processed her
claim improperly. Counsel also asserts that this delay deprived appellant of a property right in a
schedule award benefit under the fifth edition and that a protected property interest cannot be
deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v.
Eldridge, 424 U.S. 319 (1976).
In Harry D. Butler,13 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all

12

Id. at (6th ed. 2008), pp. 494-531.

13

43 ECAB 859 (1992).

5

claimants and the Board has concurred in the adoption.14 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.15 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
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.
CONCLUSION
The Board finds that appellant has not established that she sustained more than a 30
percent impairment of the left upper extremity and a 5 percent impairment of the right upper
extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2010 is affirmed.
Issued: October 14, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
14

Id. at 866.

15

FECA Bulletin No. 09-03 (issued March 15, 2009). FECA Bulletin was incorporated in the supra note 10,
Schedule Award & Disability Claims, Chapter 2.808.6(a) (January 2010).

6


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

)
)
)
)
)
)
)
)

Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1005
Issued: November 23, 2011

Case Submitted on the Record

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

JURISDICTION
On March 15, 2011 appellant, through his attorney, filed a timely appeal from the Office
of Workers’ Compensation Programs’ (OWCP) January 25, 2011 nonmerit decision denying his
request for reconsideration on the grounds that it was untimely filed and failed to establish clear
evidence of error. Since more than one year has elapsed from the most recent merit decision of
August 17, 1993 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the claim pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2 and 501.3.2

1
2

5 U.S.C. §§ 8101-8193.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration on the merits on the grounds that his request was untimely filed and failed to
show clear evidence of error.
FACTUAL HISTORY
This case was previously before the Board. By decision dated May 7, 2010, the Board
affirmed nonmerit OWCP decisions dated July 11 and November 3, 2008 and March 3, 2009,
denying appellant’s reconsideration requests on the grounds that they were not timely filed and
failed to establish clear evidence of error.3 The facts of the case as set forth in the Board’s prior
decision are incorporated herein by reference. The facts and the history relevant to the present
appeal are set forth.
OWCP accepted that on September 18, 1987 appellant sustained a lumbar strain and
lacerations to the left elbow and right leg due to a dog attack. Appellant was released to regular
duty on October 7, 1987. In an August 17, 1993 decision, OWCP denied appellant’s claim of
recurrence beginning September 6, 1988 finding that the medical evidence did not establish that
his disability was due to the accepted injury. The record reflects that on September 5, 1988
appellant was at home and had severe low back pain when bending to retrieve a rake from under
the edge of the house. On September 13, 1988 appellant underwent back surgery for a herniated
disc.
On October 11, 2010 appellant, through counsel, requested reconsideration and submitted
a September 23, 2010 report from Dr. Louis P. Clark, Jr., a Board-certified orthopedic surgeon,
who reviewed appellant’s x-rays and medical records. Dr. Clark noted that it was possible for
appellant’s disc to rupture while bending over to pick up a rake, but only if there was already an
onset of degenerative disc disease. Appellant’s x-rays revealed degenerative disc disease on
September 25, 1987 and the medical records revealed he was seen several times between
October 7, 1987 and September 1988 for low back pains after he returned to regular duty
delivering mail. Dr. Clark opined that the source of appellant’s chronic back pain between 1987
and 1988 came from his degenerative disease or bulging discs. He opined that it was probable
that the 1987 trauma to appellant’s lumbar spine, when he fell and then was kicking very
vigorously to try to fend off a large dog, resulted in significant trauma to the discs in the lumbar
spine from which he did not recover quickly because of his age. Appellant continued to have
pain as the disc material could not return to its healthy space. Dr. Clark stated that the continued
heavy work of carrying a heavy mailbag over the intervening year contributed to the disc
remaining out of shape and being more susceptible to injury. When appellant bent over in
September 1988, that event triggered the overt herniation and the acute onset of pain. Dr. Clark
advised it was reasonable that the 1987 trauma was a significant contributing factor in the acute
onset of pain which occurred in September 1988. He further stated that if his office or
Dr. C. Cooley, appellant’s family physician’s office had ordered a computerized tomography
(CT) scan and, if the x-rays were correctly reported in September 1987, appellant should not
3

Docket No. 09-1588 (issued May 7, 2010).

2

have been allowed to return to his regular work duties. Dr. Clark opined that the job activities
increased the risk of his herniated disc. He indicated that no nonwork-related activities were
reported by appellant or his wife except bending to pick up a tool.
By decision dated January 25, 2011, OWCP denied appellant’s reconsideration request
on the grounds it was untimely and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.4 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To require it to reopen a case for merit review under
section 8128(a) of FECA,6 OWCP’s regulations provide that the evidence or argument submitted
by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of
law; (2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.7 When a claimant
fails to meet one of the above standards, OWCP will deny the application for reconsideration
without reopening the case for review on the merits.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise and explicit and must be
manifested on its face that OWCP committed an error.9
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.10

4

20 C.F.R. § 10.607(a).

5

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

6

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.608(b).

9

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

10

Annie L. Billingsley, 50 ECAB 210 (1998).

3

Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.11 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.12 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.13 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.14
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
The most recent merit decision in this claim is dated August 17, 1993 denying a recurrence of
disability. Appellant’s request for reconsideration was dated October 11, 2010, more than one
year after the August 17, 1993 decision. The Board finds that the reconsideration request was
not timely filed.
The Board also finds that appellant has not established clear evidence of error on the part
of OWCP. The underlying issue in this case, whether appellant established a recurrence of
disability beginning September 6, 1988 causally related to the September 18, 1987 work injury,
is medical in nature. Appellant, however, did not submit sufficient evidence to shift the weight
of the medical evidence in his favor or establish that OWCP erred in denying his claim.
In support of his reconsideration request, appellant submitted Dr. Clark’s September 23,
2010 medical report. Dr. Clark stated it was probable that the 1987 trauma to appellant’s lumbar
spine, when he fell and was kicking to fend off a large dog, resulted in significant trauma to the
discs in the lumbar spine, from which appellant did not recover, and that the continued heavy
work of carrying a heavy mailbag over the intervening year contributed to the disc remaining out
of shape and being more susceptible to injury. When appellant bent over in September 1988,
that event triggered the overt herniation and the acute onset of pain. Dr. Clark, therefore, opined
that it was reasonable that the 1987 trauma was a significant contributing factor in the acute
onset of pain which occurred in September 1988. He further asserted that if a CT scan had been
ordered or if x-rays were reported correctly and appellant should not have been allowed to return
to his regular duties, which increased the risk of having a herniated disc.15 While Dr. Clark’s
opinion contains some support for appellant’s underlying claim, the Board notes that clear
evidence of error is intended to represent a difficult standard. Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development is not clear evidence of error and
11

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

12

Id.

13

Id.

14

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

15

Dr. Clark did not specifically distinguish his October 7, 1987 treatment note which released appellant to work
without noting any restriction and advised that spine motion was good and that appellant had no tenderness over the
sacroiliac joints or the lumbar spine.

4

would not require reopening the case.16 The Board finds that Dr. Clark’s report is not the type of
positive, precise and explicit evidence which manifests on its face that OWCP committed an
error.17 Thus, OWCP properly determined appellant’s untimely reconsideration request did not
demonstrate clear evidence of error in its August 17, 1993 decision.
On appeal, appellant’s attorney argues that Dr. Clark support that the mere act of bending
over to pick up a rake in September 1988 would not, by itself, be enough to trigger the kind of
back pain appellant suffered following that incident, without there being preexisting degenerative
disc disease. Counsel contends that OWCP never considered the effect of the September 1987
incident in aggravating the preexisting disc disease or its residuals. As discussed, however,
when an application for review of a merit decision is not timely filed, OWCP will consider the
application only if it demonstrates clear evidence of error. To establish clear evidence of error,
the evidence submitted must be positive, precise and explicit and must manifest on its face that
OWCP committed an error.18 The evidence appellant submitted on reconsideration fails to meet
this standard.
Appellant’s attorney further argues on appeal that previously OWCP and the Board
essentially ignored Dr. Christopher T. Aul, a Board-certified family practitioner’s opinion, that
the injury suffered in 1987 was a significant contributing factor in the follow-up surgery and
period of disability. Evidence from Dr. Aul was considered by the Board in the previous appeal
and was found insufficient to establish clear evidence of error.19
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

16

See Joseph R. Santos, 57 ECAB 554 (2006); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(c) (January 2004).
17

See D.D., 58 ECAB 206 (2006).

18

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004).

19

A decision of the Board is final upon expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d).
Appellant did not file a petition for reconsideration of the Board’s May 7, 2010 decision pursuant to 20 C.F.R.
§ 501.7(a).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 25, 2011 is affirmed.
Issued: November 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6