United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, RESEARCH
TRIANGLE PARK STATION, Durham, NC,
Employer
__________________________________________

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

Docket No. 08-1741
Issued: March 10, 2009

Case Submitted on the Record

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

JURISDICTION
On June 3, 2008 appellant filed a timely appeal from an April 22, 2008 decision of the
Office of Workers’ Compensation Programs denying his claim for further compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant established that he continues to have disability or residuals
related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board on appeal. The facts and the history of
the case are incorporated by reference. The relevant facts are briefly set forth below.
The Office accepted that on April 11, 2002 appellant, then 39 years old, sustained a
lumbar strain when he slipped and fell on steps while carrying a tub of mail, in his capacity as an

express mail messenger. On May 24, 2005 it proposed termination of appellant’s benefits based
on the report of Dr. Donald Getz, a Board-certified orthopedic surgeon and second opinion
physician, who found that appellant could return to work without restriction. By decision dated
June 27, 2005, the Office terminated medical and wage-loss benefits. An oral hearing was held
before an Office hearing representative on July 27, 2006. In a September 28, 2006 decision, the
hearing representative affirmed the decision terminating benefits. By decision dated June 21,
2007, the Board affirmed the September 28, 2006 decision of the hearing representative, finding
that the Office properly terminated appellant’s compensation benefits on June 27, 2007 and that
appellant did not establish a continuing disability or residuals caused by his work-related lumbar
strain.
On January 23, 2008 appellant filed a request for reconsideration. In a January 18, 2008
statement, he contended that he had a continuing disability. Appellant also argued in detail that
Dr. Getz was fraudulent and that this single evaluation was insufficient to determine that he did
not suffer any continuing disability. In support of his claim, he submitted a November 6, 2006
letter from the Office of Personnel Management and a December 4, 2007 letter from the Social
Security Administration, both finding that he is currently disabled.
Appellant also submitted several medical records. A July 25, 2006 magnetic resonance
imaging (MRI) scan of appellant’s lumbosacral spine and lumbar spine revealed bulging annulus
fibrosis at L3-4, disc herniation with resultant forminal stenosis at L4-5, and moderate-to-marked
disc space narrowing at L4-5 and L5-S1. Further, in September 26, 2006 medical reports,
Dr. Scot E. Reeg, a Board-certified orthopedic surgeon, diagnosed degenerative disc disease. In
a February 20, 2007 medical report, he mentioned a potential future need for multilevel artificial
disc replacement. In a medical report dated May 25, 2007, Dr. Duncan Fagundus, a Boardcertified rheumatologist, diagnosed polymyositis and symptoms of parotid gland hypertrophy.
Appellant additionally submitted several past medical records dated May 1, 2002 through
January 19, 2004.
In a decision dated April 22, 2008, the Office denied modification, finding that appellant
did not provide sufficient medical evidence to establish a continued work-related disability.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 After termination or modification of compensation
benefits, clearly warranted on the basis of the evidence, the burden for reinstating compensation
benefits shifts to the employee. In order to prevail, the employee must establish by the weight of
the reliable, probative and substantial evidence that he or she has an employment-related
disability which continued after termination of compensation benefits.2

1

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Anna M. Blaine, 26 ECAB 351, 353-54
(1975); see Fred Foster, 1 ECAB 127, 132-33 (1948).
2

I.J., supra note 1; Gary R. Sieber, 46 ECAB 215, 222 (1994); see Wentworth M. Murray, 7 ECAB 570,
572 (1955).

2

ANALYSIS
The Office accepted that appellant sustained a lumbar strain in the performance of duty
and that he was temporarily totally disabled. On prior appeal, the Board determined that the
Office properly terminated appellant’s disability compensation on June 27, 2005. The issue is
whether appellant has met his burden of proof to establish that he continues to have a workrelated disability.
The Board notes appellant’s complaint as to the weight and sufficiency given to
Dr. Getz’s medical report in determining that he is no longer disabled. The Board, in its June 21,
2007 decision, has already determined that the Office properly terminated appellant’s
compensation on June 27, 2005 based on this examination, which was adequate and carried the
weight of medical opinion evidence. According to 20 C.F.R. § 501.6(d), the Board’s decision
became final after 30 days.3 The Office did not further address the issue of whether appellant’s
compensation was properly terminated, thus this subject matter is res judicata and not subject to
further consideration by the Board.4 Because the Office properly terminated appellant’s
disability compensation, the burden shifted to appellant to prove that he is still disabled due to an
employment-related condition.5
Appellant submitted letters dated December 4, 2007 from the Social Security
Administration and November 6, 2006 from the Office of Personnel Management concluding
that he was still disabled. This evidence is irrelevant to the Office’s determination of disability.
Decisions of other agencies regarding disability are not binding on the Office because the
standards for establishing work-related disability under the Federal Employees’ Compensation
Act6 (the Act), which governs the Office and the Board, are not the same standards set for
disability retirement or social security benefits.7
For example, the Social Security
Administration considers a person disabled if he or she is unable to engage in gainful
employment8 and the Office of Personnel Management looks at an employee’s inability to
perform the duties of his or her position because of work or nonwork-related conditions.9 The
Act has its own specific standard for determining disability, requiring a causal relationship
between the claimant’s disability and the accepted work injury. Thus, the decisions of other
agencies are not determinative of the issue in this case.10

3

See also Joseph A. Brown, 55 ECAB 543 (2004).

4

See 5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

5

Supra note 3.

6

5 U.S.C. §§ 8101-8193.

7

See Raj B. Thackurdeen, 54 ECAB 396 (2003).

8

See id.; Hazelee K. Anderson, 37 ECAB 277 (1986).

9

See id; Earl L. Swanson, 29 ECAB 707 (1978).

10

See 5 U.S.C. § 8102(a); supra note 4.

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Appellant further submitted an MRI scan and medical reports dated September 26, 2006
signed by Dr. Reeg and February 20, 2007 signed by Dr. Fagundus, which discussed his ongoing
advanced degenerative disc disease and polymyositis. These reports are also insufficient to
establish appellant’s burden of proof because they do not address whether appellant is disabled.
Further, neither polymyositis nor degenerative disc disease are accepted conditions; rather the
only condition accepted by the Office is a lumbar strain. In order to establish continuing
disability, appellant must show that he is disabled due to an employment-related condition.11
Because there is no evidence to establish that appellant’s degenerative disc disease or
polymyositis is causally related to his employment injury, this evidence does not meet
appellant’s burden of proof.
Finally, appellant submitted several medical records dated May 1, 2002 through
January 19, 2004. These records predate the termination of appellant’s compensation on
June 27, 2005 and are irrelevant to the issue of whether appellant has a continuing disability.
Therefore, the Board finds that appellant did not submit evidence sufficient to establish
that he has a continuing work-related disability.
CONCLUSION
The Board finds that appellant did not establish that he continued to have disability or
residuals related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
11

See supra note 3.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC & ATMOSPHERIC
ADMINISTRATION, Norfolk, VA, Employer
__________________________________________

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Appearances:

Docket No. 17-1261
Issued: May 8, 2019

Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

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

JURISDICTION
On May 19, 2017 appellant, through counsel, filed a timely appeal from a March 27, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted April 10, 2015 employment incident.
FACTUAL HISTORY
On May 15, 2015 appellant, then a 70-year-old wage mariner, filed a traumatic injury claim
(Form CA-1) alleging that, on April 10, 2015, he sprained his right shoulder while throwing a
garbage bag into a dumpster while in the performance of duty. The employing establishment noted
on the claim form that he had been injured in the performance of duty. Appellant did not stop
work.
In a June 4, 2015 report, Dr. Thomas R. Dempsey, a Board-certified orthopedic surgeon,
evaluated appellant’s right shoulder. He related that approximately two months prior appellant
was throwing some garbage onto a pile when he felt a pop and developed pain in the anterior
portion of his shoulder.3 Dr. Dempsey examined appellant’s right shoulder and determined that
he had a rupture of the biceps tendon. He noted full range of motion with forward flexion to 130
degrees, extension to 30 degrees, internal and external rotation to 95 degrees, and abduction and
adduction to 100 degrees. Dr. Dempsey observed no muscle atrophy or weakness and noted
reflexes of the biceps, triceps, and brachioradialis, were normal. He diagnosed shoulder pain,
osteoarthritis of the acromioclavicular joint, and nontraumatic rupture of biceps tendon.
Dr. Dempsey requested that appellant have a right shoulder magnetic resonance imaging (MRI)
scan. He released appellant to work with restrictions to include no lifting over 10 pounds.
Appellant filed a series of claims for compensation (Form CA-7) for time lost from work
due to his alleged injury.4
In a development letter dated July 27, 2015, OWCP informed appellant of the type of
evidence needed to establish that he experienced the incident alleged to have caused injury. It
informed him of the type of factual and medical information needed to establish his claim and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to respond. He
did not respond.
By decision dated August 28, 2015, OWCP denied appellant’s claim, finding that the
evidence submitted was insufficient to establish that the employment incident occurred as alleged.
It noted that appellant had not provided a detailed description of his injury or responded to the
development questionnaire.
In a written statement dated August 23, 2015, appellant indicated that his injury occurred
while working aboard the NOAA Ship Ronald H. Brown. He explained that on April 10, 2015 as
3

Appellant informed OWCP that he was delayed in obtaining medical treatment because he was at sea traveling
from Tahiti to Hawaii.
4
In a June 17, 2015 memorandum, the employing establishment authorized continuation of pay from May 15 to
June 28, 2015.

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they were preparing to sail from the Port of Papeete in Tahiti, he was removing trash and garbage
from the vessel to a dumpster dockside and something popped in his upper arm and shoulder.
Appellant indicated that he made the Boatswain aware of this injury. He noted that the next day
he could not lift his arm above shoulder height due to pain. Appellant advised that he made an
additional injury report and was sent to the ship’s medical officer where he was treated and notes
were made in the medical log. He also noted that they arrived in Honolulu, Hawaii on May 13,
2015 and he arrived home on Saturday, May 16, 2015.
On September 17, 2015 appellant requested reconsideration. He repeated the description
of his injury at sea and noted that he was providing a copy of his sea days and a statement of his
port work which had been signed by his commanding officer. Appellant noted that he was not
sure why his claim was being denied when he was injured while on duty.
In an August 4, 2015 report, Dr. Dempsey noted that appellant presented with chronic right
shoulder pain that had persisted for four months. He also indicated that he was supposed to have
a right shoulder MRI scan, but it had not been approved by OWCP.
In an October 2, 2015 report, Dr. Dempsey noted that appellant presented with chronic
right shoulder pain that had started five months prior. He noted that he was still waiting for
authorization for the MRI scan of the right shoulder. Dr. Dempsey advised that appellant’s range
of motion had improved and that he had back surgery to remove a tumor on August 10, 2015.
By decision dated December 3, 2015, OWCP modified appellant’s claim, finding that he
had met his burden of proof to establish that the employment incident had occurred as alleged.
However, the claim remained denied as he had not established a diagnosed condition causally
related to the accepted employment incident of April 10, 2015.5
In a December 1, 2015 report, Dr. Dempsey noted that appellant presented for follow up
of an April 10, 2015 work injury which caused right shoulder pain. He noted that appellant did
not complain of pain, but that it only hurt intermittently and did not radiate. Dr. Dempsey noted
that the pain was exacerbated by overhead activity. He noted that appellant admitted that no other
symptoms were associated with his right shoulder and he denied any new numbness or tingling in
his right upper extremity. Dr. Dempsey diagnosed: pain in the joint of the right shoulder; arthritis
of shoulder region, right, degenerative; and elevated blood pressure.
On January 21, 2016 appellant requested reconsideration and submitted additional
evidence.
In a January 12, 2016 report, Dr. Dempsey noted that appellant complained of his arm
feeling weak and his shoulder feeling like it was catching. He explained that physical examination
of appellant’s upper extremity revealed a gap in the upper part of his right arm consistent with a
rupture of the biceps tendon. Dr. Dempsey noted that appellant was treated with antiinflammatories and a right shoulder MRI scan had been ordered for a “probable biceps tendon
5
OWCP also determined that his claim for wage-loss compensation would not be addressed, as his traumatic injury
claim was denied.

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rupture (which was likely the pop he felt).” He explained that x-rays of appellant’s right shoulder
showed some arthritis changes. Dr. Dempsey opined that appellant suffered a rupture of the biceps
tendon when he threw garbage onto a pile at work on April 10, 2015 and that the history and
examination was consistent with a torn biceps tendon.
By decision dated April 4, 2016, OWCP modified the December 3, 2015 decision to accept
that appellant had established a diagnosed condition, degenerative arthritis of the right shoulder.
However, appellant had not established that the condition was causally related to the accepted
employment incident.6
On January 9, 2017 appellant, through counsel, requested reconsideration of the April 4,
2016 decision.7 In support of his request, he submitted a recent letter from Dr. Dempsey.
In an October 5, 2016 letter, Dr. Dempsey noted the denial of appellant’s claim and
explained that he had been injured tossing garbage into a truck. He explained that he believed
appellant sustained a rotator cuff tear, but the MRI scan that was requested had been denied and
thus the condition could not be definitively provided. Dr. Dempsey explained that the probable
rotator cuff tear with pain was directly related to the employment incident. He noted that “as far
as a biomechanical or pathophysiologic explanation, if there is stress on the rotator cuff going into
abduction and extension, you can tear the rotator cuff.” Dr. Dempsey noted that this is common
knowledge and that it is also commonly documented that a biceps tendon rupture can occur lifting
objects or with quick motions upwards and outwards with the biceps musculature. He explained
that appellant has legitimate pain that occurred directly after his injury and that the only way to
definitely diagnose a rotator cuff tear or a bicep tendon tear is with an MRI scan, which OWCP
“refuses to allow.”
By decision dated March 27, 2017, OWCP denied modification of its prior decision. It
determined that the medical evidence of record did not contain a rationalized opinion from a
physician, explaining why or how a firmly diagnosed medical condition was caused or aggravated
by the accepted April 10, 2015 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period,8 that an injury was sustained in the performance of duty as alleged, and that
6

On August 10, 2016 appellant, through counsel, filed an appeal to the Board from the April 4, 2016 merit decision.
By letter dated October 21, 2016, counsel withdrew the appeal. By order dated January 3, 2017, the Board dismissed
the appeal. Order Dismissing Appeal, Docket No. 16-1632 (issued January 3, 2017).
7
The request for reconsideration initially requested reconsideration of a purported decision dated August 4, 2016.
However, there is no decision of that date found in the case record. On March 24, 2017 OWCP confirmed with counsel
that the request for reconsideration was with regard to the April 4, 2016 merit decision.
8
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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any disability or medical condition for which compensation is claimed is causally related to the
employment injury.9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.11 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.12 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.13
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.14 The opinion of the physician
must be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted April 10, 2015 employment incident.
Appellant treated for his right shoulder and upper extremity with Dr. Dempsey who
diagnosed osteoarthritis of the right shoulder joint and possible bicep tendon tear and rotator cuff
tear. In a June 4, 2015 report, Dr. Dempsey repeated the history of injury and performed a physical
examination of the right upper extremity. He initially diagnosed shoulder pain, osteoarthritis of
the acromioclavicular joint, and a nontraumatic rupture of the biceps tendon, requested a right
shoulder MRI scan, and restricted appellant from lifting greater than 10 pounds. Dr. Dempsey
reported on August 4, October 2, and December 1, 2015 that the requested MRI scan had not been
approved by OWCP and that the chronic right shoulder pain persisted, but range of motion had
improved. He explained that appellant’s pain was exacerbated by overhead activity and there were
no additional symptoms in the right upper extremity. These reports are insufficient to establish
causal relationship in this claim. The Board has held that medical evidence that does not offer an
9
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
10

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
11

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

12

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

13

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

14

K.V., Docket No. 18-0723 (issued November 9, 2018).

15

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

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opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.16 As Dr. Dempsey did not discuss the cause of the conditions he had
diagnosed, these reports have no probative value.
In a report dated January 12, 2016, Dr. Dempsey again noted appellant’s complaints of
right arm weakness and a feeling of catching in the shoulder. He again noted a probable biceps
tendon rupture, but noted no definitive diagnosis of a rupture as the requested MRI scan had not
been authorized. Dr. Dempsey opined that appellant suffered a rupture of the biceps tendon when
he threw garbage onto a pile at work on April 10, 2015. The Board has held that a report is of
limited probative value regarding causal relationship if it does not contain medical rationale
explaining how a given medical condition/disability was related to employment factors.17 The
Board finds that the January 12, 2016 report contains no medical rationale and is therefore of
minimal probative value on the issue of causal relationship.
Dr. Dempsey provided a letter dated October 5, 2016 in which he concluded that appellant
sustained injury when tossing garbage into a truck. He explained that he believed that appellant
sustained a rotator cuff tear, but because the requested MRI scan had been denied the condition
could not be definitively provided. Dr. Dempsey opined that from a biomechanical or
pathophysiologic explanation that “if there is stress” on the rotator cuff going into abduction and
extension that the rotator cuff “can tear.” He noted that “it is common knowledge” that a biceps
tendon rupture can occur when lifting objects or with quick motions upwards and outwards with
the biceps musculature. Dr. Dempsey acknowledged that while appellant had legitimate pain
directly after the accepted employment incident, he had not definitely been able to diagnose that
either a biceps tendon rupture or rotator cuff tear had occurred. The Board has held that it is not
possible to establish the cause of a medical condition if the physician has not provided a diagnosis,
but only notes pain.18 The Board has consistently held that pain is a symptom and not a
compensable medical diagnosis.19 While Dr. Dempsey expressed his belief that appellant’s upper
extremity pain is due to a biceps tendon rupture or a rotator cuff tear, he acknowledged that neither
diagnosis had yet been confirmed.
As appellant has not submitted rationalized medical evidence sufficient to establish that he
sustained a right shoulder condition causally related to the accepted April 10, 2015 employment
incident, he has not met his burden of proof to establish the claim.
On appeal counsel asserts that appellant has met his burden of proof as the medical
evidence was sufficiently rationalized. For the reasons set forth above, the Board finds that
appellant has not met his burden of proof.
16

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

17

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relationship between the accepted
work factors and a diagnosed condition/disability).
18

See A.C., Docket No. 16-1587 (issued December 27, 2016).

19

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted April 10, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTION TERRE HAUTE,
Terre Haute, IN, Employer
__________________________________________

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

Docket No. 20-1034
Issued: November 25, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 15, 2020 appellant, through counsel, filed a timely appeal from a February 7,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted August 15, 2019 employment incident.
FACTUAL HISTORY
On August 20, 2019 appellant, then a 32-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on August 15, 2019 he felt a pop and burning sensation in
his right knee after stepping on uneven concrete when responding to a fight in the recreation yard
while in the performance of duty. On the reverse side of the claim form the employing
establishment acknowledged that he was injured while in the performance of duty. Appellant
stopped work on August 21, 2019 and returned to work on August 22, 2019.
On August 15, 2019 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16) authorizing appellant to seek medical care related to
his right knee pain. In Part B of Form CA-16, attending physician’s report, of even date, Dr. Rahat
Sheikh, a Board-certified family practitioner, noted that appellant twisted his right knee. He
diagnosed right knee strain and checked a box marked “Yes” to indicate that the condition was
caused or aggravated by the described employment activity. Dr. Sheikh indicated that appellant
could resume light-duty work with restrictions.
In an August 22, 2019 attending physician’s report (Form CA-20), Dr. Sheikh noted that
appellant indicated that he felt a burning sensation in his right knee after running on uneven
ground. He examined appellant and diagnosed right knee pain. Dr. Sheikh checked a box marked
“Yes” to indicate that appellant’s condition was caused or aggravated by the described
employment activity.
In a development letter dated August 23, 2019, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
Thereafter, appellant submitted an x-ray report of his right knee, dated August 15, 2019,
which revealed minimal osteoarthritis.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the February 7, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

In an August 15, 2019 report, Dr. Sheikh noted that appellant twisted his right knee while
running across uneven concrete at work. He examined appellant and diagnosed right knee pain.
On August 22, 2019 Dr. Sheikh noted that appellant was still experiencing right knee pain. He
examined appellant and diagnosed right knee pain and ordered a magnetic resonance imaging
(MRI) scan of appellant’s right knee. An MRI scan report of appellant’s lower extremity joint,
dated August 22, 2019, revealed chondromalacia of the patella. In an August 27, 2019 report,
Dr. Sheikh noted that appellant’s right knee pain had not improved. He examined appellant and
diagnosed right knee pain.
On September 2, 2019 appellant responded to OWCP’s development questionnaire. He
noted that he had not experienced similar symptoms prior to the alleged employment incident.
Appellant indicated that he had previously injured his right knee on September 27, 2012, and that
his physicians advised him that the injury would cause major problems in the future, such as
arthritis and possible joint deterioration. He clarified that the employment incident occurred as he
was running while responding to a fight between inmates.
In a Form CA-20 report, dated September 3, 2019, Dr. Ronald Wheeler, a Board-certified
orthopedic surgeon, noted that appellant injured his right knee at work while running to respond
to a fight. He diagnosed chondromalacia of the right patella and patellofemoral osteoarthritis.
Dr. Wheeler checked a box marked “Yes” to indicate that appellant’s condition was caused or
aggravated by the described employment activity. He indicated that appellant could resume lightduty work with restrictions. In an accompanying report of work ability, Dr. Wheeler diagnosed
patellofemoral arthritis and listed appellant’s work restrictions.
In a September 3, 2019 report, Dr. Wheeler reviewed x-rays and an MRI scan of
appellant’s right knee. He diagnosed patellofemoral arthritis of the right knee and chondromalacia
of the right patella. Dr. Wheeler indicated that appellant would likely require patellofemoral
arthroplasty with medial realignment.
By decision dated September 26, 2019, OWCP denied appellant’s traumatic injury claim,
finding that, while the August 15, 2019 employment incident occurred, as alleged, the medical
evidence of record was insufficient to establish causal relationship between his diagnosed right
knee conditions and the accepted employment incident.
OWCP subsequently received a September 3, 2019 report from Dr. Wheeler who noted
that appellant felt a pop in his right knee while running at work. Dr. Wheeler examined appellant
and reviewed x-rays and an MRI scan of his right knee. He diagnosed patellofemoral arthritis of
the right knee and chondromalacia of the right patella.
In a September 27, 2019 report, Dr. Wheeler noted that appellant was experiencing pain
during physical therapy treatment and was not improving. He examined appellant and diagnosed
patellofemoral arthritis of the right knee and chondromalacia of the right patella. Dr. Wheeler
recommended surgical intervention for appellant’s right knee conditions. In an accompanying
report of work ability, he listed appellant’s work restrictions.
In an October 7, 2019 report, Dr. Wheeler noted that appellant previously sustained a right
knee injury in September 2012. He indicated that there were issues related to the initial injury that

3

did not heal or continued to degenerate. Dr. Wheeler reported that appellant was unable to perform
his work duties following the August 15, 2019 employment incident. He examined appellant and
diagnosed exacerbation of right patellofemoral pathology, patellofemoral arthritis of the right
knee, and chondromalacia of the right patella. Dr. Wheeler recommended surgical intervention.
In an accompanying report of work ability, he listed appellant’s work restrictions.
On October 10, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated February 7, 2020, OWCP’s hearing representative affirmed the
September 26, 2019 decision, finding that the medical evidence of record was insufficient to
establish causal relationship between appellant’s diagnosed right knee conditions and the accepted
August 15, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been established.
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.8 The second component is whether the employment incident caused a personal
injury.9

4

Supra note 2.

5

M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6
J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7

B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.J., Docket No. 19-0461 (issued August 11, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

9

D.M., Docket No. 20-0386 (issued August 10, 2020); John J. Carlone, supra note 5.

4

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.11
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted August 15, 2019 employment incident.
In support of his claim, appellant submitted an August 15, 2019 report from Dr. Sheikh
who diagnosed right knee pain. In an August 22, 2019 report and accompanying Form CA-20
report, Dr. Sheikh diagnosed right knee pain. The Board has held, however, that pain is a symptom
and not a compensable medical diagnosis.13 These reports are therefore insufficient to meet
appellant’s burden of proof.
In an August 15, 2019 report, Dr. Sheikh diagnosed right knee strain and checked a box
marked “Yes” to indicate that the condition was caused or aggravated by the described
employment activity. Similarly, in a September 3, 2019 Form CA-20 report, Dr. Wheeler
diagnosed chondromalacia of the right patella and patellofemoral osteoarthritis and checked a box
marked “Yes” to indicate that appellant’s condition was caused or aggravated by the described
employment activity. The Board has held that when a physician’s opinion on causal relationship
consists only of checking a box marked “Yes” to a form question, without more by the way of
medical rationale, that opinion is of limited probative value and is insufficient to establish causal
relationship.14 As such, these reports are insufficient to establish appellant’s claim.
Appellant also submitted September 3 and 27, 2019 reports from Dr. Wheeler who
diagnosed patellofemoral arthritis of the right knee and chondromalacia of the right patella. While
Dr. Wheeler referenced the accepted employment incident, he did not offer an opinion as to
whether appellant’s diagnosed conditions were causally related to the employment incident. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
10

A.R., Docket No. 19-0465 (issued August 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

W.L., Docket No. 19-1581 (issued August 5, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1071 (issued August 26, 2020); V.W., Docket No. 19-1537 (issued May 13, 2020).
13

T.S., Docket No. 20-0343 (issued July 15, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, supra note 5.

14

M.S., Docket No. 20-0437 (issued July 14, 2020).

5

employee’s condition is of no probative value on the issue of causal relationship.15 Accordingly,
these reports are insufficient establish appellant’s claim.
In an October 7, 2019 report, Dr. Wheeler noted that appellant previously injured his right
knee in September 2012. He indicated that there were issues related to the initial injury that did
not heal or continued to degenerate. Dr. Wheeler diagnosed exacerbation of right patellofemoral
pathology, patellofemoral arthritis of the right knee, and chondromalacia of the right patella.
While he supported causal relationship, he offered only a conclusory statement devoid of medical
rationale. Dr. Wheeler did not explain the mechanism of how the accepted employment incident
of running and twisting his knee was competent to cause appellant’s diagnosed conditions. The
Board has held that a medical report is of limited probative value on a given medical issue if it
contains an opinion which is unsupported by medical rationale.16 Further, the Board has
consistently held that complete medical rationalization is particularly necessary when there is a
preexisting condition involving the same body part,17 and has required medical rationale
differentiating between the effects of the work-related injury and the preexisting condition in such
cases.18 Therefore, Dr. Wheeler’s October 7, 2019 report is also insufficient to establish
appellant’s claim.
The record contains an x-ray report of appellant’s right knee, dated August 15, 2019, and
an MRI scan report of his lower extremity joint, dated August 22, 2019. The Board has held,
however, that diagnostic studies standing alone lack probative value on the issue of causal
relationship as they do not provide an opinion as to whether the employment incident caused any
of the diagnosed conditions.19
As the medical evidence of record does not contain rationalized medical evidence
establishing causal relationship between appellant’s diagnosed right knee conditions and the
accepted August 15, 2019 employment incident, the Board finds that appellant has not met his
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

15

L.B., Docket No. 19-1907 (issued August 14, 2020); D.K., Docket No. 17-1549 (issued July 6, 2018).

16

B.M., supra note 7.

17

P.W., Docket No. 20-0407 (issued July 17, 2020).

18

Id.; see also A.J., Docket No. 18-1116 (issued January 23, 2019); M.F., Docket No. 17-1973 (issued
December 31, 2018); J.B., Docket No. 17-1870 (issued April 11, 2018).
19

C.B., Docket No. 20-0464 (issued July 21, 2020).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted August 15, 2019 employment incident.20
ORDER
IT IS HEREBY ORDERED THAT the February 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2020
Washington, DC

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

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

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

20

The Board notes that the employing establishment issued a Form CA-16, dated August 15, 2019. A completed
Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility or
physician, when properly executed. The form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R.
§ 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, WEST BILOXI
STATION, Biloxi, MS, Employer
__________________________________________

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

Docket No. 07-2209
Issued: June 23, 2008

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 August 29, 2007 appellant filed a timely appeal from the August 2, 2007 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than one percent permanent impairment of her
right upper extremity and more than five percent impairment of her left upper extremity, for
which she received schedule awards.
FACTUAL HISTORY
On January 10, 1997 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim for burning, numbness and tingling from her left elbow to her fingers due to factors
of her federal employment. The Office accepted the claim for left wrist and elbow tendinitis and
later expanded it to include bilateral carpal tunnel syndrome. In May, September and

December 2000, respectively, appellant underwent bilateral carpal tunnel releases and right wrist
and a transposition of the left ulnar nerve near her elbow.
On February 24, 2003 appellant filed a claim for a schedule award. On May 21, 2003 her
treating physician, Dr. Robert Hillier, a Board-certified orthopedic surgeon, placed her on total
disability. On June 30, 2003 the Office requested that Dr. Hillier determine the extent of
appellant’s permanent impairment using the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed., 2001).
In a July 24, 2003 report, Dr. Hillier reported that appellant had reached maximum
medical improvement for her upper extremity conditions. He noted that her bilateral wrist scars
and left elbow scar were well healed, but that she had decreased light-touch sensation over her
median nerves, weakness in the intrinsic muscles and decreased sensation in the ulnar nerve
distribution. Using Table 16-10 in the A.M.A., Guides, Dr. Hillier found that appellant’s
bilateral carpal tunnel syndrome caused a Grade 2, 70 percent, sensory deficit of the median
nerve below the forearm of each arm. This resulted in a 28 percent impairment of each upper
extremity when combined with the maximum 39 percent impairment allowed under Table 16-15.
Dr. Hillier found a Grade 4, 20 percent, motor deficit on Table 16-11 related to weakness in each
hand. Under Table 16-15, this motor weakness yielded 2 percent upper extremity impairment
based on the 10 percent maximum allowed. Dr. Hillier opined that appellant had 30 percent
permanent impairment in each upper extremity related to her carpal tunnel syndrome. Using a
similar method to evaluate appellant’s bilateral ulnar cubital condition, he found Grade 2,
70 percent, sensory deficit and Grade 4, 20 percent, motor deficit in both upper extremities.
Dr. Hillier stated that this resulted in 14 percent permanent impairment in each arm. Using the
combined values table, he found that appellant had 40 percent permanent impairment in each
upper extremity because of her carpal tunnel and cubital tunnel syndromes.
On September 2, 2003 the Office provided Dr. Hillier’s report to the Office medical
adviser to determine whether appellant was entitled to a schedule award. The medical adviser
recommended a second opinion examination because the impairment rating approved excessive
for the accepted conditions. On September 23, 2003 the Office referred appellant for a second
opinion examination.
On November 14, 2003 Dr. Tim Jackson, a Board-certified orthopedic surgeon, reviewed
appellant’s medical records and conducted a physical examination. He noted that appellant had
full range of motion in her elbows and wrists. There was mild pain at the wrists with maximum
extension and flexion, but no tenderness with pronation or supination. Dr. Jackson found intact,
but subjectively diminished, light-touch sensation in all fingers. He noted no muscle atrophy, a
5/5 intrinsic opposition strength in the wrists and 4/5 grip strength bilaterally. Dr. Jackson noted
that Dr. Hillier had found moderate recurrent slowing of appellant’s left median nerve through
the carpal tunnel based on a May 6, 2003 electromyogram (EMG) study. He did not review the
nerve conduction results himself. Dr. Jackson referred appellant for a functional capacity
evaluation with a hand specialist.
On December 16, 2003 Joseph Church, a certified hand therapist, conducted an upper
extremity evaluation. He tested range of motion and strength in all of appellant’s upper
extremity joints. Mr. Church noted mild deficits in active range of motion at the left wrist and

2

elbow that yielded a left upper extremity impairment rating of one percent. He stated that he did
not include grip strength as a factor in the rating because it was “inconsistently low.”
In a supplemental report dated January 26, 2004, Dr. Jackson stated that he had reviewed
Mr. Church’s findings. He stated that appellant had reached maximum medical improvement as
of December 16, 2003, with residual sensory and strength deficits. Dr. Jackson reported that
appellant’s active flexion was normal at both wrists and right elbow and limited to 130 degrees at
the left elbow. Appellant’s active extension was normal at her left wrist and limited to
60 degrees on the right. Dr. Jackson stated that appellant had two percent impairment of
function in each arm due to sensory deficit, pain or loss of strength. He recommended an
impairment rating of two percent for each upper extremity.
Dr. James Dyer, a Board-certified orthopedic surgeon acting as an Office medical
adviser, reviewed the medical records and stated that appellant had reached maximum medical
improvement on July 24, 2003. He stated that appellant’s condition was similar to the second
scenario in the A.M.A., Guides section on carpal tunnel syndrome, page 495, in which
impairment ratings are limited to five percent when an individual has normal sensibility and
opposition strength and abnormal EMG testing. Dr. Dyer found that a two percent left upper
extremity impairment rating would be appropriate given appellant’s abnormal nerve conduction
study combined with her minimal symptoms. At the Office’s instruction, Dr. Dyer provided no
right arm rating.
On June 30, 2004 the Office provided Dr. Jackson’s reports and Dr. Dyer’s
recommendation to Dr. Hillier for his comments. It requested that he state whether he concurred
with the findings and, if he did not, that he provide rationale for his rating. Dr. Hillier did not
respond.
By decision dated August 18, 2004, the Office granted appellant a schedule award for
two percent of her left upper extremity. Appellant was compensated for 6.24 weeks, from
July 24 to September 5, 2003.
On September 15, 2004 appellant requested an oral hearing. By decision dated
March 29, 2005, the Office hearing representative determined that appellant’s case was not in a
posture for a hearing. She vacated the August 18, 2006 decision and remanded the case to the
Office for further development. The Office hearing representative found that Dr. Jackson’s
report appeared internally inconsistent and provided no rationale or citations from the A.M.A,
Guides to support his assessment. She stated that the Office erroneously instructed Dr. Dyer to
provide only a left arm rating. The Office hearing representative also noted that Dr. Dyer did not
provide adequate rationale for his rating.
On July 11, 2005 the Office requested that Dr. Dyer conduct another review of the
medical record and provide a rationalized opinion in accordance with the Office hearing
representative’s decision. On July 12, 2005 Dr. Dyer stated that he was in full agreement with
Dr. Jackson’s recommendation of two percent impairment for each upper extremity. He
indicated that Dr. Hillier failed to correctly combine the A.M.A., Guides Table 16-15 with
Tables 16-10 and 16-11 to rate the motor and sensory losses of the median and ulnar nerves.

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By decision dated August 5, 2005, the Office amended appellant’s schedule award to
include compensation for two percent impairment of her right arm. Appellant was compensated
for the period September 6 to October 19, 2003. On August 15, 2005 he requested a review of
the written record.
By decision dated November 14, 2005, the Office hearing representative vacated the
August 5, 2005 decision. She found that there was a conflict between the impairment ratings of
Dr. Hillier and Dr. Dyer. The Office hearing representative remanded the case and ordered
referral to an impartial medical examiner for an examination and an opinion on the level of
appellant’s permanent impairment.
On November 29, 2005 the Office referred appellant’s medical record to Dr. Byron
Jeffcoat, a Board-certified orthopedic surgeon, selected as an impartial medical specialist. In a
report dated December 14, 2005, Dr. Jeffcoat concurred with Dr. Dyer’s rating. He stated that
his opinion was based on appellant’s medical history and the A.M.A., Guides section on
“Impairment of the Upper Extremities Due to Peripheral Nerve Disorders,” pages 480-96.
Dr. Jeffcoat noted that the most recent examination report, dated April 7, 2005, indicated that
appellant had pain in the median nerve distribution and left elbow.
By decision dated January 23, 2006, the Office denied an increase in appellant’s schedule
award. It found that Dr. Jeffcoat’s report was entitled to the weight of the medical opinion
evidence because it was not vague, speculative or equivocal and was supported by substantial
medical reasoning.
On January 31, 2006 appellant requested an oral hearing. On April 4, 2007 the Office
hearing representative stated that appellant had telephoned him prior to the hearing to inform him
that she had additional medical information to submit. He gave her 30 days to do so and notified
her that she did not need to appear at the hearing.
By decision dated May 23, 2007, the Office hearing representative vacated the
January 23, 2006 decision on the grounds that the Office erred in failing to refer appellant for an
examination by the impartial medical examiner. On June 21, 2007 the Office referred appellant
to Dr. Jeffcoat for an examination in accordance with the Office hearing representative’s
decision.
On July 19, 2007 Dr. Jeffcoat reviewed appellant’s medical history and conducted a
physical examination. He found full range of motion in all of appellant’s upper extremity joints,
including full extension and flexion of her elbows and wrists. Dr. Jeffcoat found decreased
sensation over the voler surface of the third finger and the dorsal surface of her left hand and
over her right little finger. He noted normal strength in her hands and wrists, negative Tinel’s
signs at both wrists and elbows, and negative Phalen’s tests bilaterally. Dr. Jeffcoat stated that
Table 16-15, page 492, of the A.M.A., Guides listed sensory deficit of the ulnar palmar nerve of
the little finger as a three percent upper extremity impairment. He opined that appellant’s level
of impairment was consistent with Grade 4, 25 percent, on Table 16-10, page 482, which would
give her a 0.75 percent impairment of the right arm. Dr. Jeffcoat stated that her decreased
sensation over the dorsum and middle finger of the left hand were consistent with Grade 3,
50 percent, deficit on Table 16-10, page, 482. Noting that appellant did not have any decreased

4

sensation of her forearms on either side, the doctor reported that ulnar palmar and radial palmar
digitals decreased sensation had a maximum upper extremity impairment of 9 percent of the left
upper extremity based on Table 16-15, which when multiplied by 50 percent of Grade 3, yielded
a 4.5 percent of the left upper extremity.1 Dr. Jeffcoat found that appellant reached maximum
medical improvement by July 18, 2007.
On July 30, 2007 an Office medical adviser reviewed Dr. Jeffcoat’s report. He concurred
with the finding that appellant had one percent impairment of her right upper extremity and five
percent of her left upper extremity.
By decision dated August 2, 2007, the Office granted appellant an additional three
percent for her left arm or a total of five percent and one percent of her right arm. Appellant was
compensated for the period October 20 to December 24, 2003.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss should
be determined. For consistent results and to ensure equal justice under the law for all claimants,
the Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.4
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.5
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.6 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.7

1

The Board notes that Dr. Jeffcoat’s report revealed a maximum of 90 percent impairment for the ulnar palmar
and radial palmar digitals’ decreased sensation. The Board notes that this is an apparent typographical error as the
maximum impairment for both when added together is nine percent. See A.M.A., Guides 492, Table 16-15.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

See Paul A. Toms, 28 ECAB 403 (1987).

7

A.M.A., Guides 433-521, Chapter 16, The Upper Extremities, (5th ed. 2001).

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Section 8123(a) of the Act provides, in pertinent part: “If there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.”8 In
situations where there are opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.9
ANALYSIS
The Office granted appellant a schedule award for one percent of her right upper
extremity and five percent of her left upper extremity. The issue to be determined is whether she
has established that her upper extremity impairment was greater than that for which she received
compensation.
On July 24, 2003 Dr. Hillier, a Board-certified orthopedic surgeon, found that appellant
had 40 percent impairment in each upper extremity based on 70 percent sensory and 20 percent
motor deficits in the median nerve below the forearm and the cubital nerve. On January 26,
2004 Dr. Jackson, a Board-certified orthopedic surgeon, opined that appellant had two percent
impairment in each upper extremity due to sensory deficit, pain or loss of strength in the median
nerve. On July 11, 2005 Dr. Dyer a Board-certified orthopedic surgeon acting as an Office
medical adviser, concurred with Dr. Jackson’s opinion and found that Dr. Hillier did not
accurately utilize the A.M.A., Guides. The Office hearing representative correctly found that
there was a conflict between the reports of Dr. Hillier and Drs. Jackson and Dyer, which were of
equal weight.
Dr. Jeffcoat, a Board-certified orthopedic surgeon, was selected as an impartial medical
examiner to resolve the conflict in the medical evidence. On July 19, 2007 he reviewed
appellant’s medical records and conducted a physical examination. Dr. Jeffcoat found that
appellant had a full range of motion in all the joints in her upper extremities, including her
elbows and wrists. He noted decreased sensation over the voler surface of the left third finger,
the dorsal surface of the left hand and right little finger. Dr. Jeffcoat reported that appellant had
normal strength in her hand and wrists, as well as negative Tinel’s signs and Phalen’s tests
bilaterally. He stated that Table 16-15, page 492, of the A.M.A., Guides limited sensory deficit
of the ulnar palmar nerve of the little finger to a maximum of three percent upper extremity
impairment. Dr. Jeffcoat opined that the sensory deficit in appellant’s right little finger was
Grade 4, 25 percent, on Table 16-10, page 482, which resulted in a 0.75 percent impairment of
the right arm. He stated that the decreased sensation over the dorsum and middle finger of her
left hand were consistent with Grade 3, 50 percent, deficit on Table 16-10, page, 482.
Dr. Jeffcoat further stated that appellant did not show any decreased sensation of her forearms on
either side and noted that ulnar palmar and radial palmar digital decreased sensation is a
maximum of nine percent upper extremity impairment per Table 16-15. He found that, by
multiplying the 9 percent impairment by Grade 3 or 50 percent impairment, appellant had a
8

5 U.S.C. § 8123(a).

9

Roger Dingess, 47 ECAB 123 (1995); Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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4.5 percent permanent impairment of her left upper extremity. Dr. Jeffcoat found that appellant
reached maximum medical improvement by July 18, 2007. The Board finds that the medical
opinion of Dr. Jeffcoat is entitled to the special weight of the medical evidence because it is well
rationalized and based on a proper factual background.
The Board finds that the Office properly relied on Dr. Jeffcoat’s report in granting
appellant a schedule award for one percent of her right arm and five percent of her left arm.10
The Office medical adviser found that Dr. Jeffcoat correctly utilized the A.M.A., Guides to
determine appellant’s level of impairment. A.M.A., Guides Table 16-15, page 492, provides that
a sensory deficit of the ulnar palmar nerve of the little finger has a maximum upper extremity
impairment of 3 percent. When multiplied by the Grade 4, 25 percent, deficit in appellant’s right
little finger, as determined by Table 16-10, page 482, the result is 0.75 percent impairment of the
right arm. Table 16-15 states that an ulnar palmar digital deficit of the middle finger has a
maximum impairment of four percent and that a radial palmar digital deficit of the middle finger
has a maximum of five percent upper extremity impairment. Together, they have up to nine
percent upper extremity impairment. This percentage is then multiplied by the degree of deficit
according to Table 16-10, page 482. The decreased sensation over the dorsum and middle finger
of her left hand was found to be Grade 3, 50 percent, which yields a 4.5 percent permanent
impairment in appellant’s left arm.
The Board notes that appellant has not presented medical evidence to overcome the
weight of Dr. Jeffcoat’s opinion.
CONCLUSION
The Board finds that appellant does not have more than one percent permanent
impairment of her right upper extremity and five percent impairment of her left upper extremity.

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The Board notes that the Office properly rounded Dr. Jeffcoat’s impairment ratings of 0.75 and 4.5 percent to 1
and 5 percent, respectively, because its policy is to round the calculated percentage of impairment to the nearest
whole number. See Robert E. Cullison, 55 ECAB 570 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2007 is affirmed.
Issued: June 23, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-0975
Issued: March 10, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 11, 2021 appellant filed a timely appeal from a June 4, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish stress-related
conditions in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained a series o f conditions due to workrelated stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated
cholesterol, and diabetes. She indicated that she started working as a paralegal specialist for
the employing establishment on October 20, 2014. Appellant maintained that her supervisor,
L.M., created a stressful and hostile work environment over time, and indicated that there were
“Equal Employment Opportunity Commission (EEOC) issues.” She asserted that L.M. did not
like the way she communicated and asked her if she would quit her job. Appellant noted that
she first became aware of her claimed conditions on October 20, 2014 and first realized their
relation to her federal employment on July 31, 2018. She stopped work on July 17, 2017.
In a June 10, 2019 statement, appellant further discussed her claimed employment-related
conditions and again claimed that her work environment aggravated her health. She maintained
that L.M. intentionally exposed her to a hostile work environment and asked if she was going to
quit “due to circumstances surrounding my employment.”
Appellant submitted medical evidence in support of her claim, including reports of
Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified
family practitioner. She also submitted time and attendance summary reports from July and
September 2018.
In a June 25, 2019 development letter, OWCP notified appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence. In response, appellant asserted that L.M. treated her differently on purpose due to her
race and that the harassment was continuous. She claimed that L.M. retaliated against her for
filing an EEOC complaint in 2016.
Appellant submitted documents relating to the EEOC complaint she filed in 2016. In
the complaint, she claimed that in October 2015 she was improperly instructed not to take sick
leave for the rest of the year and that in December 2015 she was denied compensatory time.
Appellant also alleged that on December 24, 2015 L.M. accused her of “gaming the system” when
she tried to change her schedule and that on February 15, 2016 she wrongly did not receive holiday
pay. She further claimed that on March 1, 2016 she was approved for reasonable
accommodation that did not address her needs and that on March 30, 2016 L.M. called her
“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal
reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date
her work duties were wrongly reduced and her work was delegated to another employee.
2

Docket No. 20-1271 (issued March 9, 2021).

2

Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal
of a September 28, 2017 final decision denying her claims of discrimination. In this decision,
an EEOC official addressed each of her above-noted claims and found that it had been properly
determined in the prior decision dated September 28, 2017 that the employing establishment
did not subject her to discrimination or other wrongdoing. The official found that the employing
establishment provided reasonable accommodation to appellant for her bipolar disorder by
allowing her to change her schedule and that it appropriately handled matters relating to sick leave,
holiday pay, and compensatory time. The official indicated that the evidence revealed that L.M.
denied that she called appellant stupid on March 30, 2016 after appellant improperly sent out a
draft in portable document format (PDF), but that she indicated she might have commented that
it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was “gaming the system” on December 24, 2015, when appellant attempted
to change her schedule in the middle of a pay period to get more holiday time. She noted it was
established that on September 8, 2016 L.M, told appellant that she should be careful about what
she said to people. In addition, it was established that L.M. asked appellant whether she intended
to quit and that, when appellant stated that she did not, L.M. responded by saying, “Good.” The
official concluded that, when considering L.M.’s comments and actions in context, it had not been
shown that L.M. subjected appellant to discrimination or created a retaliatory or hostile work
environment. 3
By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related
emotional condition. It determined that she had not established a compensable employment factor.
On August 5, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that
L.M. threw a stapler at her on October 20, 2014. Appellant indicated that L.M. asked her whether
she was going to quit and asserted that her working conditions caused or worsened her medical
conditions.
After the hearing, additional documents were added to the case record, including the
employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive
absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017
affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10,
2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.
In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable accommodation to
appellant by approving appellant’s request regarding telework days. She noted that the human
resources office advised her that she could not approve appellant’s request to change appellant’s
schedule on short notice in order to receive pay for federal holidays. L.M. indicated that in
December 2015 appellant sent out a draft document as a PDF document despite the fact that such
documents are normally sent out in Microsoft Word format. She noted that she had a conversation
with appellant, who indicated that she had intentionally sent the document as a PDF document
because she thought it was a good idea. L.M. reported that she did not call appellant stupid
but might have stated that it would be stupid to send the draft in the wrong format. With regard to
appellant’s allegation that she was accused of “gaming the system” with respect to her request to
3

Appellant also submitted additional medical evidence in support of her claim.

3

change her work schedule, L.M. explained that she told appellant that it would be improper and
gaming the system, to change her schedule in the middle of a pay period in order to receive pay
for a holiday. She claimed that she treated appellant fairly with respect to leave matters.
In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,
appellant contested L.M.’s assertions with respect to schedule changes. She claimed that L.M.
did, in fact, call her stupid with respect to the matter involving the PDF document, and expressed
her belief that L.M. was accusing her of theft when she stated that she was gaming the system.
Appellant also generally contested L.M.’s assertions that she had properly handled matters relating
to leave usage and work assignments.
In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant
on September 8 and 15, 2016 and denied that she acted improperly. She noted that during the
September 15, 2016 meeting she advised appellant that she needed to be careful about what she
stated to people and consider their points of view. L.M. indicated that this comment was made
in the context of the other paralegal having felt that appellant made various accusations against her.
She also noted that, during this meeting, she asked appellant if she was considering quitting
because of the communication issues and overlapping schedule problems among the clerks.
When appellant indicated that she was not quitting, L.M. noted that she replied, “Good.” She
noted that she later apologized to appellant and told appellant that she was trying to speak
openly and plainly. L.M. indicated that she did not recall telling appellant that a certain work
assignment was none of her business.
In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that
a work assignment involving redaction of information was none of her business. She restated her
belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she
made improper comments about her communication skills.
The case record was also supplemented to include the original September 28, 2017 final
EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the
full evidentiary record did not establish that L.M. subjected appellant to discrimination or created
a retaliatory or hostile work environment. She found that the employing establishment provided
reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled
matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M.
explained that she reassigned some of appellant’s tasks to another employee because the work
schedule of that employee made it more suitable for her to perform those tasks. She indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated
that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was gaming the system, and that she should be careful about what she stated
to people. In addition, the EEOC decision established that L.M. asked appellant whether she
intended to quit and that, when appellant stated that she did not, L.M. responded by saying,
“Good.” The official concluded that, when considering L.M.’s comments and actions in context,
no improper actions were committed.

4

By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31,
2019 decision. Appellant appealed to the Board and, by decision dated March 9, 2021,4 the Board
affirmed the April 1, 2020 decision.
On March 9, 2021 appellant requested reconsideration of the denial of her emotional
condition claim. In support of her reconsideration request, she submitted two e-mails from the
Office of Personnel Management (OPM), a February 16, 2021 e-mail advising her that a disability
earnings survey had opened and a February 28, 2021 e-mail informing her that it had received her
response to an OPM disability eligibility survey. Appellant also submitted a March 11, 2020
notification of personnel action (Standard Form (SF) 50) memorializing her retirement from the
employing establishment on disability retirement. In an accompanying statement, she argued that
the fact that she retired on disability proved that managers committed wrongdoing and that she
was subjected to a hostile work environment.
By decision dated June 4, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 7
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
4

Supra note 2.

5

Supra note 1.

6

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
8

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

5

reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 9 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 10
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors. 11 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors. 12
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 13 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence. 14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
The Board preliminarily notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 1, 2020 decision, which was considered by the
Board in its March 9, 2021 decision. Findings made in prior Board decisions are res judicata
absent further merit review by OWCP under section 8128 of FECA. 15
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at her place of work. Therefore, the Board must initially review whether these alleged
9

Lillian Cutler, 28 ECAB 125 (1976).

10

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

11

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

13

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

incidents and conditions are covered employment factors under the terms of FECA. The Board
notes that appellant’s claim does not directly relate to her regular or specially assigned duties
under Lillian Cutler.16 Rather, appellant claimed that her supervisor, L.M., committed error and
abuse with respect to various administrative/personnel matters. She also claimed that L.M.
subjected her to harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that L.M.
mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable
accommodation requests, and the assignment of work tasks. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.17 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.18 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably. 19
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted two e-mails from
OPM, a February 16, 2021 e-mail advising her that a disability earnings survey had opened, and a
February 28, 2021 e-mail informing her that it had received her response to an OPM disability
eligibility survey. She also submitted a March 11, 2020 SF 50 memorializing her disability
retirement from the employing establishment on disability retirement. Appellant argued that the
fact that she retired on disability retirement proved that managers committed wrongdoing.
However, this evidence would not in any way show that management committed error or abuse
with respect to administrative or personnel matters. Appellant has not otherwise presented
evidence, such as a final decision of an administrative body, to show that L.M. or other managers
committed error or abuse with respect to administrative or personnel matters.20 In addition, the
mere fact that appellant retired on disability retirement would not support her claims regarding
administrative/personnel matters. Although appellant expressed dissatisfaction with the actions of
L.M., the Board has held that mere dislike or disagreement with certain supervisory actions will
not be compensable absent error or abuse on the part of the supervisor. 21 Therefore, she has not
established a compensable employment factor with respect to administrative or personnel matters.
Appellant also alleged harassment and discrimination by L.M. and claimed that she created
a stressful hostile work environment. She asserted that L.M. treated her differently on purpose
16

See supra note 9.

17

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
18

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

19

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

20

See generally M.R., Docket No. 18-0304 (issued November 13, 2018).

21

T.C., Docket No. 16-0755 (issued December 13, 2016).

7

due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also
claimed that L.M. made comments and engaged in actions that rose to the level of harassment and
discrimination. To the extent that disputes and incidents alleged as constituting harassment are
established as occurring and arising from an employee’s performance of his or her regular duties,
these could constitute employment factors. 22 The Board has held that unfounded perceptions of
harassment do not constitute an employment factor.23 Mere perceptions are not compensable
under FECA and harassment can constitute a factor of employment if it is shown that the
incidents constituting the claimed harassment actually occurred.24
As noted above, appellant submitted February 16 and 28, 2021 e-mails from OPM and
a March 11, 2020 SF 50. She argued that the fact that she retired on disability retirement proved
that she was subjected to a hostile work environment. However, these docum ents do not
support appellant’s claims of harassment and discrimination and the mere f act that she
retired on disability retirement also would not support her claims of harassment/
discrimination . Appellant has not submitted sufficient documentary evidence to show that
L.M. subjected her to harassment or discrimination. 25 Therefore, she has not established a
compensable employment factor with respect to the claimed harassment and discrimination. As
the Board finds that appellant has not established a compensable employment factor, it is not
necessary to consider the medical evidence of record. 26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

22

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

See id.

25

See B.S., Docket No. 19-0378 (issued July 10, 2018).

26

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

8

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9