United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.N., Appellant
and
DEPARTMENT OF THE NAVY,
COMMANDER NAVY INSTALLATIONS,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 13-1020
Issued: January 30, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 22, 2013 appellant filed a timely appeal from the February 19, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to modify OWCP’s December 18,
2006 wage-earning capacity determination.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY

OWCP accepted that on June 18, 1986 appellant, then a 28-year-old rigger, sustained a
cervical dorsal strain/sprain and herniated lumbar disc due to lifting and emptying trash cans. At
the time, he was working 40 hours per week at the employing establishment.2 Appellant last
worked on January 25, 1989. On March 12, 2004 he underwent an authorized discectomy at
L4-5 and L5-S1 with anterior interbody fusion.
In an April 15, 2005 letter, appellant reported to OWCP that on April 11, 2005 he began
working for 20 hours a week as an activities director for Kampgrounds of America in Niagara
Falls, NY. In a June 28, 2006 letter, an official from Kampgrounds of America stated that on
April 11, 2005 appellant began employment “doing activities” at the Niagara Falls Kampgrounds
of America.3 The official advised that appellant was scheduled to work 20 hours a week and
made $6.75 per hour.
In a December 18, 2006 decision, OWCP adjusted appellant’s compensation effective
April 11, 2005 based on its determination that his actual wages as an activities director
represented his wage-earning capacity.4
Appellant stopped working on November 20, 2008.
He advised OWCP in a
December 10, 2008 letter that his injury-related condition had worsened and that he could no
longer work as an activities director. OWCP requested that he submit evidence in support of the
request to establish that modification of the loss in wage-earning capacity was warranted.
In a November 24, 2008 report, Dr. David F. Grider, an attending Board-certified
orthopedic surgeon, noted that appellant had chronic myositis, thoracic outlet syndrome,
bicepital tendinitis bilaterally, bulging discs at C3 and C4 and chronic lumbosacral strain. He
stated, “It is my opinion that this patient is no longer able to work in his present capacity. The
patient cannot do the lifting that is required, work the hours that are required and cannot function
in his present position.” Appellant also submitted reports of Dr. Marcus Malone, an attending
orthopedic surgeon, and Dr. Igor Khromov, an attending Board-certified physical medicine and
rehabilitation physician, which detailed his neck and back symptoms.
In an October 1, 2009 decision, OWCP denied appellant’s request for modification of its
December 18, 2006 wage-earning capacity determination. It found that he had not established
that the original determination was erroneous or that he sustained a material worsening of his
injury-related condition such that he could no longer work as an activities director.

2

Appellant worked eight hours a day, Monday through Friday.

3

The official stated that the duties of the job included “riding in a golf cart to talk with the guests in the park and
make sure that they are having a nice time” and giving “the guests ideas of where to go and what to see in the area,
helping guests learn how to do tie dye t-shirts, games, ice cream socials, etc.”
4

OWCP indicated that appellant’s actual wages were $135.00 per week.

2

In an October 21, 2009 report, Dr. Michael Drelles, an attending osteopath, diagnosed
myalgia, myositis, cervalgia and lumbago. In a December 2, 2010 report, Dr. Ruben Fernandez,
an attending Board-certified anesthesiologist, diagnosed postlaminectomy syndrome of the
lumbar region, degeneration of cervical intervertebral disc, muscle spasm, cervalgia, pain in
thoracic spine and lumbago.
In a February 11, 2011 decision, OWCP denied appellant’s request for modification of its
December 18, 2006 wage-earning capacity determination.
Appellant submitted medical reports from attending physicians who diagnosed several
conditions, including postlaminectomy syndrome of the lumbar region, degeneration of cervical
intervertebral disc, muscle spasm, cervalgia, pain in thoracic spine and lumbago. He also
submitted medical notes listing periods of disability after November 20, 2008.
In a February 27, 2012 decision, OWCP determined that appellant was not entitled to
further review of the merits of his claim under section 8128 of FECA. It found that the
additional evidence and arguments he provided were cumulative, repetitious, irrelevant or
immaterial.
Appellant submitted a December 19, 2011 report from Dr. Daniel Battaglia, an attending
Board-certified anesthesiologist, who discussed the management of appellant’s multiple pain
symptoms, primarily located in the cervical and lumbar regions.
In a January 16, 2013 decision,5 the Board set aside OWCP’s February 27, 2012 decision
denying appellant merit review. The Board noted that, as appellant had requested modification
of the December 18, 2006 wage-earning capacity determination, the requirements for requesting
reconsideration did not apply in this case and he was entitled to a merit review on the wageearning capacity issue. The Board remanded the case to OWCP to issue a merit decision on this
issue.
In a February 19, 2013 decision, OWCP found that appellant had not met his burden of
proof to modify the December 18, 2006 wage-earning capacity determination. Appellant did not
establish that the original wage-earning capacity decision was in error or submit probative
medical evidence showing that he could no longer work as an activities director due to his
accepted injury-related condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
5

Docket No. 12-1774 (issued January 16, 2013).

6

Katherine T. Kreger, 55 ECAB 633 (2004).

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unless the claimant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.8 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.9
OWCP’s procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonably represents his or her WEC [wage-earning capacity], the CE [claims
examiner] should consider whether the kind of appointment and tour of duty (see
FECA PM 2.900.3) are at least equivalent to those of the job held on date of
injury. Unless they are, the CE may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) position is proper, as long as it will last at least 90
days, and reemployment of a term or transitional (USPS) worker in another term
or transitional position is likewise acceptable. However, the reemployment may
not be considered suitable when:
(1) The job is part-time (unless the claimant was a part-time
worker at the time of injury) or sporadic in nature;
(2) The job is seasonal in an area where year-round employment is
available….
(3) The job is temporary where the claimant’s previous job was
permanent.”10
ANALYSIS
OWCP accepted that on June 18, 1986 appellant sustained a cervical dorsal strain/sprain
and herniated lumbar disc due to lifting and emptying trash cans. On March 12, 2004 appellant
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
8

Stanley B. Plotkin, 51 ECAB 700 (2000).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a (July 1997).

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underwent an OWCP-authorized discectomy at L4-5 and L5-S1 with anterior interbody fusion.
In a December 18, 2006 decision, OWCP adjusted his compensation effective April 11, 2005
based on his ability to earn wages as an activities director. It based appellant’s loss of wageearning capacity on a determination that his actual earnings as an activities director beginning
April 11, 2005 represented his wage-earning capacity. Appellant requested modification of
OWCP’s December 18, 2006 wage-earning capacity determination, but it denied his request for
modification of this determination.
The record reflects that appellant’s date-of-injury job as a rigger was a full-time position.
The actual earnings in this case were based on a part-time job of activities director. Appellant
worked 20 hours per week in this position. OWCP’s procedure manual provides, in situations
where an employee is working full time when injured and is reemployed in a part-time position,
a formal wage-earning capacity determination is generally not appropriate. The Board has held
that OWCP must address the issue and address why a part-time position is suitable for a wageearning capacity determination based on the specific circumstances of the case.11
OWCP did not address this issue in the 2005 wage-earning capacity decision. It made a
finding that his actual earnings fairly and reasonably represented appellant’s wage-earning
capacity. OWCP did not address the part-time position or the fact that appellant was not a parttime employee when he sustained injury. The Board finds that OWCP failed to meet its burden
of proof in determining appellant’s wage-earning capacity effective April 11, 2005 based on his
part-time work as an activities director for 20 hours per week.
OWCP has not shown that appellant’s wages as an activities director fairly and
reasonably represent his wage-earning capacity and it improperly adjusted his compensation
based on this wage-earning capacity determination. Therefore, appellant has shown that
OWCP’s original determination with regard to his wage-earning capacity was erroneous and that
modification of the determination is warranted on this basis.12
CONCLUSION
The Board finds that appellant met his burden of proof to modify OWCP’s December 18,
2006 wage-earning capacity determination.

11

Connie L. Potratz-Watson, 56 ECAB 316 (2005).

12

See supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the February 19, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 30, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 20-0019
Issued: May 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal of the July 31, 2019
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.
ISSUE
The issue is whether appellant has met her burden of proof to establish a torn meniscus
causally related to the accepted April 23, 2018 employment incident.

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.

FACTUAL HISTORY
On April 23, 2018 appellant, then a 25-year-old part-time flexible clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that day she injured her left leg and knee when pulling
an all-purpose container (APC), and tripped, twisting her left knee while in the performance of
duty. She stopped work on April 24, 2018.
In a development letter dated April 27, 2018, OWCP advised appellant of the deficiencies
of her claim and instructed her as to the factual and medical evidence necessary to establish her
claim. It requested that she provide a narrative medical report from her physician, which contained
a detailed description of findings and diagnoses, explaining how the reported incident caused or
aggravated her medical condition. OWCP afforded appellant 30 days to submit the necessary
evidence.
In response, appellant submitted an April 24, 2018 medical note from Kristina Eberly, a
certified nurse practitioner. Nurse Eberly noted shooting pain in appellant’s left knee after an
April 23, 2018 work incident in which appellant was pulling an APC, tripped and twisted her left
knee. She also noted that appellant had a history of a previous medial meniscus tear in the same
knee with an arthroscopic meniscal repair procedure performed approximately a year and a half
ago.
In an April 24, 2018 duty status report (Form CA-17), Nurse Eberly diagnosed left knee
strain and recommended work restrictions. In an attending physician’s report (Form CA-20) of
even date, she again noted appellant’s history of a meniscal tear and repair and diagnosed left knee
strain. Nurse Eberly checked a box marked “yes” to indicate her belief that appellant’s condition
was caused or aggravated by her employment activity.
In an April 25, 2018 medical note, Lisa Alchholz, a certified nurse practitioner reported
that an x-ray of appellant’s knee was negative for any fractures. In a Form CA-17 and Form CA20 of even date, she noted appellant’s history of a left knee meniscal repair and diagnosed left knee
strain. Nurse Alchholz checked a box marked “yes” to indicate her belief that appellant’s condition
was caused or aggravated by her employment activity and provided her with updated work
restrictions.
In a May 8, 2018 progress note, Dr. John Bondra, a Board-certified orthopedic surgeon,
recounted appellant’s history of injury in which she slipped and twisted her left knee at work on
April 23, 2018. He noted her history of a medial meniscus tear in her left knee and a left knee
scope performed in September 2016. Upon evaluation, Dr. Bondra assessed a subluxation of the
left patella and chondromalacia patellae in appellant’s left knee.
Appellant also submitted a May 8, 2018 medical report and an updated Form CA-17 and
Form CA-20 of even date from Dr. Jeffrey Pay, an osteopath Board-certified in emergency
medicine. Dr. Pay provided updated the treatment performed for her and the work restrictions
related to her left knee strain.
In a May 15, 2018 letter, Dr. Philip Havens, a Board-certified orthopedic surgeon, reported
appellant’s history of left knee injuries in which she underwent a left knee arthroscopic procedure
for a partial medial meniscectomy a year ago and also the April 23, 2018 incident in which she
slipped and injured her knee at work. Upon evaluation, he noted an impression of a torn medial
2

meniscus in her left knee and planned to have her undergo a magnetic resonance imaging (MRI)
scan for further evaluation.
Appellant provided a May 18, 2018 medical report and a Form CA-17 and Form CA-20
from Nurse Eberly. Nurse Eberly noted that appellant continued to experience pain, clicking,
popping, and instability in her left knee. Appellant also informed Nurse Eberly that she was unable
to return to work even with the accommodations. Nurse Eberly advised that appellant continue to
move forward with an MRI scan after she is authorized to do so.
In an undated personal statement, appellant explained that she was working in the mail
sorting area and that as she started pulling an APC full of mail towards the dock, she tripped and
twisted her left leg.
By decision dated June 4, 2018, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record did not support that her left knee injuries were causally related to the
accepted April 23, 2018 employment incident.
By letter dated June 26, 2018 appellant, through counsel, requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review.
Appellant provided a June 22, 2018 medical report and a Form CA-17 and a Form CA-20
from Nurse Eberly. She informed Nurse Eberly of OWCP’s June 4, 2018 decision and that she
would need a physician to provide a narrative explanation of how her injury is causally related to
the April 23, 2018 employment incident. Nurse Eberly indicated that many meniscal injuries are
often related to the twisting of the cartilage and recommended that appellant continue to move
forward with an MRI scan of her left knee and to meet with Dr. Pay.
The telephonic hearing was held on December 6, 2018. OWCP’s hearing representative
informed appellant that it required medical evidence relating to her previous 2016 left knee injury
and a report from a physician explaining how the April 23, 2018 employment incident caused her
current injury. She held the case record open for 30 days for the submission of additional evidence.
In progress notes dated July 11 and 26, 2018, Dr. George Stepanic, a Board-certified
orthopedic surgeon, noted pain in appellant’s left knee related to the April 23, 2018 employment
incident. He noted her surgical history of a left knee scope performed in September 2016
recommended that she undergo a left knee arthroscopy in order to treat her injury.
In an August 9, 2018 progress note, Dr. Bondra explained that appellant presented with a
complex tear of her medial meniscus. He provided a drain injection to treat her injury.
In progress notes dated from August 28 to October 18, 2018, Matthew Meyers, a physician
assistant, provided updates for appellant’s rehabilitation following her August 14, 2018 left knee
arthroscopy. After nine weeks of therapy, appellant received a J-brace and an injection to better
assist with her recovery.
By decision dated December 31, 2018, OWCP’s hearing representative reversed in part the
June 4, 2018 decision, finding that appellant’s claim should be accepted for a left knee strain as
causally related to the April 23, 2018. She further affirmed in part for the reason that she did not
meet her burden of proof to establish that she sustained a left knee medial meniscus tear or left
knee chondromalacia patella causally related to the accepted employment incident.
3

On January 9, 2019 OWCP accepted appellant’s claim for a left knee unspecified site
strain/sprain.
OWCP continued to receive evidence. In a March 19, 2019 letter, counsel requested that
it expand the acceptance of appellant’s claim to include her left knee lateral meniscus tear. Counsel
provided a February 28, 2019 letter from Dr. Stepanic, in which he explained that, after reviewing
her case, he felt with a degree of medical certainty that the April 23, 2018 employment incident
was the cause of her meniscus tear as she was not experiencing left knee pain prior to her injury.
On May 6, 2019 appellant, through counsel, requested reconsideration of OWCP’s
December 31, 2018 decision.
By decision dated July 31, 2019, OWCP denied modification of its December 31, 2018
decision, finding that Dr. Stepanic’s letter was insufficient to establish a causal relationship
between appellant’s lateral meniscus tear and the accepted April 23, 2018 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 of FECA,3 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.4 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.5
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.6 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
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.9 The opinion of the physician
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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).
6

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

7

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

8

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

9

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

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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.10
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left lateral
meniscus tear causally related to the accepted April 23, 2018 employment incident.
In Dr. Stepanic’s February 28, 2019 letter, he stated that, to a degree of medical certainty,
the April 23, 2018 employment incident was the cause of appellant’s meniscus tear as she was not
experiencing left knee pain prior to her injury. The Board has held that an opinion that a condition
is causally related to an employment injury because the employee was asymptomatic before the
injury, but symptomatic after is insufficient, without supporting rationale, to establish causal
relationship.12 Without explaining how, physiologically, the movements involved in the
employment incident caused or contributed to the meniscus tear, Dr. Stepanic’s opinion is of
limited probative value and insufficient to establish causal relationship.13
Dr. Stepanic’s remaining medical evidence consisted of progress notes dated July 11 and
26, 2018. He noted pain in appellant’s left knee related to the employment incident and also her
surgical history, including a left knee scope performed in September 2016. While Dr. Stepanic’s
report generally supports causal relationship, he did not offer any medical rationale sufficient to
explain how and why he believes that the April 23, 2018 employment incident could have resulted
in or contributed to the diagnosed condition. The Board has consistently held that complete
medical rationalization is particularly necessary when there is a preexisting condition involving
the same body part14 and has required medical rationale differentiating between the effects of the
work-related injury and the preexisting condition in such cases.15 Without explaining how tripping
and twisting her left knee caused or contributed to appellant’s meniscus tear, Dr. Stepanic’s
remaining medical evidence is of limited probative value.16

10

I.J., 59 ECAB 408 (2008).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).
12

M.B., Docket No. 19-0840 (issued October 2, 2019); John F. Glynn, 53 ECAB 562 (2002).

13

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019).

14

K.R., Docket No. 18-1388 (issued January 9, 2019).

15

See e.g., 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); E.D., Docket No. 16-1854 (issued March 3, 2017); P.O.,
Docket No. 14-1675 (issued December 3, 2015).
16

See A.P., Docket No. 19-0224 (issued July 11, 2019).

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In progress notes dated May 8 and August 9, 2018, Dr. Bondra noted appellant’s 2016
medial meniscus tear and her April 23, 2018 injury in which she slipped and twisted her left knee
at work. Upon evaluation, he assessed a subluxation of the left patella and chondromalacia patellae
in her left knee, as well as a complex tear of her medial meniscus. As stated previously, without
explaining how slipping and twisting her left knee caused or contributed to appellant’s meniscus
tear, Dr. Bondra’s medical evidence is of limited probative value.17
Similarly, in his May 15, 2018 medical report, Dr. Haven reported appellant’s history of a
medial meniscectomy and her April 23, 2018 employment incident. Upon evaluation, he noted an
impression of a torn medial meniscus in her left knee and planned to have her undergo a MRI scan
for further evaluation. However, without explaining how the employment incident caused or
contributed to appellant’s meniscus tear, Dr. Havens’ medical report is of limited probative
value.18
On an updated Form CA-17 and Form CA-20 both dated May 8, 2018 Dr. Pay provided a
diagnosis of left knee strain, the treatment performed for appellant, and accompanying work
restrictions related to her left knee strain. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship. These reports, therefore, are insufficient to establish appellant’s
claim.19
The remaining medical evidence consisted of progress notes from Mr. Meyers, a physician
assistant, and Nurses Eberly and Alchholz. The Board has held that health care providers such as
physician assistants, nurses, and physical therapists are not physicians under FECA.20 Thus, the
remaining medical evidence does not constitute a rationalized medical opinion and has no weight
or probative value.21
As appellant has not submitted rationalized medical evidence establishing that her left
lateral meniscus tear is causally related to the accepted April 23, 2018 employment incident, the
Board finds that she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

17

Id.

18

Supra note 16.

19

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

20

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also K.C., Docket No. 19-0834 (issued October 28, 2019); and E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA).
21

See A.A., Docket No. 19-0957 (issued October 22, 2019); Jane A. White, 34 ECAB 515, 518 (1983).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left lateral
meniscus tear causally related to the accepted April 23, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 6, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland Park, FL, Employer
__________________________________________

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Appearances:
Lisa Varughese, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0160
Issued: August 4, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 9, 2020 appellant, through counsel, filed a timely appeal from a July 16,
2020 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.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
medical benefits, effective March 15, 2016, as she no longer had residuals of her accepted cervical
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.

sprain, cervical radiculitis, and displacement of cervical herniated disc at C6-7 conditions due to
her accepted May 14, 2009 employment injury; and (2) whether appellant has met her burden of
proof to establish continuing residuals on or after March 15, 2016 causally related to her accepted
May 14, 2009 employment injury.
FACTUAL HISTORY
On May 14, 2009 appellant, then a 46-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she injured her head and neck when she was rear ended by
a motor vehicle causing her to hit the car in front of her while in the performance of duty.3 She
stopped work on May 15, 2009.4 OWCP accepted appellant’s claim for cervical strain, cervical
radiculitis, and concussion, and subsequently expanded acceptance of her claim to include cervical
herniated disc with radiculopathy at C6-7. It paid her wage-loss compensation on the supplemental
rolls, effective June 29, 2009, and on the periodic rolls, effective August 2, 2009.
On November 16, 2009 appellant returned to part-time, limited-duty work for
approximately one to four hours per day. OWCP paid her intermittent wage-loss compensation
on the supplemental rolls for partial disability. Appellant stopped work again on December 7,
2010 and was placed back on the periodic rolls, effective December 19, 2010.5
On December 2, 2013 appellant returned to part-time, limited-duty work for approximately
four hours per day. OWCP continued to pay her wage-loss compensation on the supplemental
rolls for the remaining four hours per day.6
Appellant continued to work part-time, limited-duty work for approximately one to five
hours per day. OWCP paid wage-loss compensation for the remaining hours per day.
OWCP subsequently referred appellant, along with a statement of accepted facts (SOAF),
a copy of the case record, and a series of questions, to Dr. David B. Lotman, a Board-certified
3

OWCP assigned the present claim OWCP File No. xxxxxx642. Appellant has two previously accepted traumatic
injury claims. Under OWCP File No. xxxxxx087, OWCP accepted an April 10, 2002 traumatic injury claim for right
shoulder contusion, neck sprain, and brachial neuritis. Under OWCP File No. xxxxxx159, it accepted a January 21,
2006 traumatic injury claim for conditions of cervical sprain, right shoulder contusion, and common migraines.
OWCP has administratively combined OWCP File Nos. xxxxxx159, xxxxxx642, and xxxxxx087, with the latter claim
designated as the master file.
4

Appellant was working a modified-duty position due to the January 21, 2006 employment injury.

5

By decision dated January 22, 2013, OWCP terminated appellant’s wage-loss compensation and medical benefits,
effective January 22, 2013, because the medical evidence of record established that she no longer had disability or
residuals causally related to her accepted May 14, 2009 work-related injury.5 In a September 11, 2013 decision,
OWCP’s hearing representative reversed the January 22, 2013 termination decision and reinstated appellant’s
entitlement to wage-loss compensation and medical benefits.
6

By decision dated December 24, 2014, OWCP terminated appellant’s wage-loss compensation benefits, effective
December 24, 2014, because the medical evidence of record established that she was no longer partially disabled due
to her accepted May 14, 2009 work-related injury. In a May 18, 2015 decision, OWCP’s hearing representative
reversed the December 24, 2014 termination decision and reinstated appellant’s entitlement to wage-loss
compensation and medical benefits.

2

orthopedic surgeon, for a second opinion evaluation regarding the status of her accepted May 14,
2009 employment injury. In a June 29, 2015 report, Dr. Lotman indicated that he had reviewed
the SOAF and noted appellant’s accepted conditions under the current claim for neck sprain,
cervical radiculitis, concussion, and displacement of cervical herniated disc at C6-7. He recounted
that appellant had two previously accepted claims for cervical sprains. Dr. Lotman discussed
appellant’s medical records and noted that an April 18, 2013 cervical spine magnetic resonance
imaging (MRI) scan revealed small right paracentral disc herniation at C5 with a disc bulge at C6.
He recounted appellant’s current complaints of occipital headaches, neck pain, and pain and
dyseathesias in her upper extremities. On physical examination, Dr. Lotman observed normal
cervical lordosis with diffuse midline tenderness, tenderness in the levator scapulae on the right
without spasm, and bilateral paraspinous pain without associated paraspinous spasm. Examination
of the upper extremities demonstrated decreased sensation bilaterally involving the lateral portion
of the upper arm.
In response to OWCP’s questions, Dr. Lotman responded that there were no clinical
findings to support residuals from appellant’s current claim. He reported that appellant’s “cervical
sprain had resolved and there is no current evidence objectively consistent with cervical disc
herniation.” Regarding appellant’s cervical radiculitis, Dr. Lotman reported that appellant may
have residuals of cervical radiculitis and recommended repeat electrophysiological studies. He
indicated that appellant was able to work her modified letter carrier position.
Appellant underwent a cervical spine MRI scan on September 9, 2015, which revealed left
foraminal stenosis at C4-5, C5-6, and C6-7 and disc bulge and small herniation at the C6-7 level.
A December 9, 2015 electromyography and nerve conduction velocity (EMG/NCV) study
revealed a moderate degree of ulnar neuropathy across the elbow, a moderate degree of carpal
tunnel syndrome on the right, a mild degree of carpal tunnel syndrome on the left, and no evidence
of cervical radiculopathy on either upper extremity.
In a January 13, 2016 supplemental report, Dr. Lotman indicated that he had reviewed
electrodiagnostic studies performed on December 9, 2015. He noted that the EMG of both upper
extremities was normal and showed no evidence of cervical radiculopathy on either side.
Dr. Lotman concluded that appellant had underlying cervical spondylosis, but no objective
evidence of continuing symptomatology from a cervical strain, cervical radiculitis, or cervical disc
herniation.
In a letter dated February 5, 2016, OWCP proposed to terminate appellant’s medical
benefits as the evidence of record established that she no longer had residuals of her accepted
cervical sprain, cervical radiculitis, and displacement of cervical herniated disc at C6-7 conditions
due to her accepted May 14, 2009 employment injury. It found that the weight of the medical
evidence rested with the June 29, 2015 and January 13, 2016 reports of Dr. Lotman, the second
opinion physician. OWCP afforded appellant 30 days to respond if she disagreed with the
proposed termination.
Appellant subsequently submitted a January 27, 2016 report and duty status report (Form
CA-17) from Dr. Dannell Anschuetz, an osteopath Board-certified in physical medicine and
rehabilitation, who indicated that she had treated appellant for neck pain. Upon examination of

3

appellant’s neck, she observed spasm and tenderness of the suboccipitals, paracervical, trapezius,
and peri-scapular muscles and abnormal range of motion (ROM). Dr. Anschuetz also noted
positive Distraction and Compression tests. She diagnosed other cervical disc degeneration,
cervical radiculopathy, and contracture of muscle.
In a March 3, 2016 statement, appellant, through her then-representative, asserted that
OWCP failed to request a supplemental report from Dr. Millheiser, regarding whether she
continued to suffer residuals of her May 14, 2009 employment injury.
By decision dated March 15, 2016, OWCP finalized the termination of appellant’s medical
benefits, effective March 15, 2016. It found that the weight of the medical evidence rested with
Dr. Lotman, OWCP’s second opinion examiner, who concluded that she had no residuals due to
her accepted cervical sprain, cervical radiculopathy, and displacement of cervical herniated disc at
C6-7.7
On March 29, 2016 appellant, through her then-representative, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review, which was held on
November 7, 2016.
Appellant submitted additional reports dated April 18 through November 17, 2016 from
Dr. Anschuetz regarding her ongoing treatment for complaints of neck and shoulder pain. In the
April 18, 2016 examination report, Dr. Anschuetz noted her disagreement with Dr. Lotman’s
reports. She explained that the electrodiagnostic study did not include study of the cervical
paraspinals and; therefore, cervical radiculopathy could not be ruled out.
In a January 6, 2017 decision, OWCP’s hearing representative affirmed the March 15,
2016 termination decision.
Appellant, through her then-representative, subsequently requested reconsideration on
December 9, 2017 and May 9, 2018.
Appellant submitted additional reports and CA-17 forms dated January 26, 2017 through
April 5, 2018 from Dr. Anschuetz regarding her continued medical treatment for daily neck pain
and headaches.
By decisions dated March 12 and July 25, 2018, OWCP denied modification of its prior
decisions.
On July 23, 2019 appellant, through counsel, requested reconsideration.
In a July 10, 2019 narrative report, Dr. Anschuetz again noted her disagreement with
Dr. Lotman’s second opinion reports and opined that appellant continued to suffer from the
accepted cervical conditions causally related to the May 14, 2009 work injury. She also noted that
the conditions of cervical herniated discs at C4-5 and C5-6, cervical spondylosis, and bilateral
7

OWCP noted that Dr. Lotman did not state that all of appellant’s accepted medical conditions had resolved, but
opined that only the accepted neck sprain, cervical radiculopathy, and displacement of cervical herniated disc at C6-7
had ceased.

4

peripheral neuropathy were likely directly related to the May 14, 2009 work injury and requested
further testing to confirm these diagnoses. Dr. Anschuetz reported that appellant continued to
exhibit abnormal range of motion in her physical examination findings, which was an objective
symptom consistent with cervical sprain. She also indicated that from April 2018 through
May 2019, appellant consistently had positive distraction, compression, and lateral compression
test results, which was a sign of cervical radiculopathy. Dr. Anschuetz further noted that the 2014
cervical spine MRI scan had confirmed disc herniation at C6-7.
By decision dated September 6, 2019, OWCP denied modification of its prior decision.
On April 20, 2020 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a February 14, 2020 narrative report, Dr. Anschuetz described the May 14, 2009
employment incident and reported diagnoses of cervical radiculopathy, other cervical disc
degeneration, cervical spine sprain, and cervical spondylosis. She alleged that Dr. Lotman
provided no medical rationale for why he believed that appellant’s cervical sprain had resolved.
Dr. Anschuetz also asserted that Dr. Lotman improperly relied solely on electrodiagnostic studies
as evidence that appellant no longer suffered from cervical radiculopathy. She explained that both
an MRI scan and EMG/NCV study were needed to confirm motor and sensory abnormalities.
Dr. Anschuetz concluded that appellant’s accepted cervical injuries of cervical sprain, cervical
radiculopathy, and cervical disc herniation at C6-7 had not resolved and that appellant had
additional conditions of cervical spondylosis and cervical disc herniations at C4-5 and C5-6 as a
result of her May 14, 2009 employment injury.
By decision dated July 16, 2020, OWCP denied modification of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
According to FECA,8 once OWCP accepts a claim and pays compensation, it bears the
burden of proof to justify termination or modification of benefits. 9 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.10
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.11 To terminate authorization for medical treatment,

8

Supra note 2.

9

A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
10

R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

11

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

OWCP must establish that the employee no longer has residuals of an employment-related
condition, which require further medical treatment.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
medical benefits, effective March 15, 2016, as she no longer had residuals of her accepted cervical
sprain, cervical radiculitis, and displacement of cervical herniated disc at C6-7 conditions due to
her accepted May 14, 2009 employment injury.
OWCP accepted that appellant sustained cervical strain, cervical radiculitis, concussion,
and displacement of cervical herniated disc at C6-7 as a result of her May 14, 2009 employment
injury. By decision dated March 15, 2016, it terminated her medical benefits based on the opinion
of Dr. Lotman, the second opinion examiner, who concluded in June 29, 2015 and January 13,
2016 reports that appellant no longer suffered residuals of her cervical conditions causally related
to her accepted May 14, 2009 employment injury.
In a June 29, 2015 report, Dr. Lotman described the May 14, 2009 employment injury and
provided examination findings. In response to OWCP’s questions, he indicated that appellant’s
“cervical sprain had resolved and there is no current evidence objectively consistent with cervical
disc herniation.” Regarding appellant’s cervical radiculitis, Dr. Lotman reported that appellant
may have residuals of cervical radiculitis and recommended repeat electrophysiological studies.
In a January 13, 2016 supplemental report, Dr. Lotman explained that a December 9, 2015
EMG/NCV study was normal with no evidence of cervical radiculopathy on either side. He
concluded that appellant had underlying cervical spondylosis, but no objective evidence of
symptomatology from a cervical strain, cervical radiculitis, or cervical disc herniation.
The Board finds, however, that Dr. Lotman’s opinion was conclusory in nature and did not
contain sufficient medical reasoning to establish that appellant no longer had residuals of her
cervical conditions due to her May 14, 2009 employment injury.13 Although he opined that there
was no objective evidence to establish that appellant still suffered from her accepted cervical
conditions, Dr. Lotman also indicated that appellant had diffuse midline tenderness and bilateral
paraspinous pain upon examination. He further noted that an April 2013 cervical spine MRI scan
report revealed small right paracentral disc herniation at C5 with a disc bulge at C6. Dr. Lotman
failed to explain, which objective findings of record established that appellant’s accepted cervical
conditions had resolved.14 Rationalized medical evidence must include rationale explaining how
the physician reached the conclusion he or she is supporting.15 Accordingly, the Board finds that
Dr. Lotman’s report lacks sufficient medical reasoning to establish that appellant’s accepted

12

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

13

See C.G., Docket No. 20-0808 (issued April 23, 2021); J.W., Docket No. 19-1014 (issued October 24, 2019).

14

See G.G., Docket No. 20-0513 (issued January 12, 2021).

15

B.B., Docket No. 19-1102 (issued November 7, 2019); Beverly A. Spencer, 55 ECAB 501 (2004).

6

cervical sprain, cervical radiculitis, and cervical disc herniation conditions causally related to her
May 14, 2009 employment injury had resolved.
Once OWCP undertook development of the record it was required to complete
development of the record by procuring medical evidence that would resolve the relevant issue in
the case.16 As it did not request that Dr. Lotman provide a supplemental opinion clarifying his
opinion, the Board finds that OWCP did not meet its burden of proof in terminating appellant’s
medical benefits.17
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
medical benefits, effective March 15, 2016.
ORDER
IT IS HEREBY ORDERED THAT the July 16, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: August 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

See J.F., Docket No. 17-1716 (issued March 1, 2018).

17

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
PUGET SOUND HEALTH CLINIC, Seattle, WA, )
Employer
)
__________________________________________ )
R.L., Appellant

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

Docket No. 20-0098
Issued: March 17, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 16, 2019 appellant filed a timely appeal from a July 18, 2019 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 an emotional
condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 13, 2015 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she developed emotional distress and severe anxiety on December 18,
2014 at 11:00 a.m. when the employing establishment police improperly arrested her with an
unwarranted display of force while she was engaged in union duties.
In a January 21, 2015 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence needed and provided a factual
questionnaire for her completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide additional information regarding appellant’s alleged
emotional condition claim, including comments from a knowledgeable supervisor regarding the
accuracy of her allegations and an explanation of any areas of disagreement, a copy of her position
description, and the results of any investigation. It afforded both parties 30 days for response.
On January 15, 2015 Dr. Keith Sonnanburg, a licensed clinical psychologist, opined that
appellant was totally disabled due to a work-related psychological injury. On February 2, 2015 he
diagnosed work-related stress and anxiety. Dr. Sonnanburg, in an attending physician’s report
(Form CA-20) dated February 4, 2015, checked a box marked “Yes” to indicate that her condition
was caused or aggravated by her employment activity and added that her condition was directly
related to episodes at her place of work.
By decision dated February 24, 2015, OWCP denied appellant’s emotional condition
claim, finding that the evidence of record was insufficient to establish that the claimed incident
occurred, as alleged. It noted that she had not submitted a factual statement outlining specific
details of the alleged December 18, 2014 employment incident. Thus, OWCP concluded that the
requirements had not been met to establish an injury as defined by FECA.
On March 4, 2015 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review. She provided additional information in support of
her request. In a March 3, 2015 statement, appellant noted that she was a union vice-president and
was responsible for representing employees in meetings and hearings with management, filing
grievances, and protecting employees’ rights. She explained that in the course of representing an
employee, R.G., a pathologist, she met with him on December 18, 2014 to discuss a fact-finding
interview scheduled on that date. Appellant had consulted via telephone with J.M., a physician
who was also the national union representative, who confirmed that R.G. was entitled to union
representation at the scheduled fact-finding interview. She and the chief union steward, A.T., met
S.L, the Acting Director of the employing establishment, and R.N., an employing establishment
official, in the hallway and S.L. informed them that R.G. did not have representation rights for the
interview. Appellant disagreed and noted that R.G. had requested her presence during the
interview. She attended the interview with the permission of the interviewer and took notes.
2

Docket No. 18-1375 (issued May 1, 2019).

2

Shortly after the interview began, R.N. interrupted the meeting and insisted that appellant and A.T.
leave. After appellant left the room, she informed R.N. that she would file an unfair labor practice
complaint against the employing establishment and requested his name. She remained outside the
conference room in the hallway on her cellphone when two armed and uniformed employing
establishment police officers, Lt. W.C., and Lt. E., began searching the area near the conference
room. They subsequently entered the conference room, returned to appellant, and asked her name.
The officers then informed her that they had been asked to remove her from that area and then that
floor of the employing establishment’s building. Appellant alleged that her removal was solely
because of her protected union activities. She noted that Lt. W.C. became agitated and denied that
there were any charges against her, but asked for her security badge. Appellant informed the
officers that her badge was in her office and led them to her office to retrieve her badge. The
officers again denied that she was under arrest and released her from custody after reviewing her
badge. Appellant alleged that this incident caused her heart palpitations, shock, and fear. She was
unable to continue her work that day and eventually went home. Appellant reported to work the
next day and again experienced heart palpitations and tension. She felt that the stress was too
much. Appellant had to ask coworkers to assist with completing her assigned work. Thereafter,
she began to have nightmares about working at the employing establishment.
Appellant noted that she had filed a Federal Labor Relations Authority (FLRA) complaint
against the employing establishment, but had not yet received a final decision. She alleged that
the employing establishment interfered with protected union activity when it called the police after
she left the interview on December 18, 2014.
Appellant provided a February 19, 2015 witness statement from R.G., who noted that he
had requested that she accompany him to the interview to protect his rights. R.G. noted that he
had invited appellant into the interview and the interviewer had indicated that he did not have a
problem with her presence. He asserted that shortly after the interview began, management
officials, including R.N., entered the room and informed the participants that R.G. did not have
the right to union representation. Appellant then left the room.
In a February 19, 2015 statement, B.A., the union president, described the events of
December 18, 2014 and confirmed that the police officers denied that appellant was under arrest,
but escorted her into her office and examined her badge. She informed B.A. that the officers had
been called to remove her from the area of the meeting. B.A. alleged that an officer advised her
that the “panic button” had been pushed as a means of calling the police to the scene.
A February 20, 2015 e-mail from J.M. indicated that he was aware that appellant was acting
as R.G.’s representative in the scheduled interview. On February 20, 2015 A.T. reported that he
had attended the December 18, 2014 meeting with appellant and R.G. He confirmed that the
interviewer consented to their presence during the interview. A.T. was taking notes when R.N.
entered and asserted that union representation was not allowed. He and appellant then left the
room.
In an undated form report, Dr. Sonnanburg noted that appellant was attending a meeting as
a union representative and was shocked by the employing establishment police who responded to
an improper panic signal and removed her. He diagnosed adjustment disorder with mixed anxiety
and depressed mood with post-traumatic stress disorder symptom pattern.

3

On May 5, 2015 appellant requested reconsideration of the February 24, 2015 OWCP
decision.
In a September 29, 2015 development letter, OWCP requested additional factual
information from the employing establishment including a statement from a supervisor regarding
the accuracy of appellant’s claim, whether her job was stressful, and a copy of her position
description. It afforded 30 days for a response. The employing establishment responded,
contending that R.G. was not entitled to union representation at the December 18, 2014 interview
and that appellant was aware of this fact. It alleged that appellant entered the room where the
interview was scheduled on December 18, 2014 and R.N. had asked her to leave. The employing
establishment asserted that she commented that she would leave the room, but would stand
immediately outside the door. Appellant then demanded information from R.N. in a loud and
aggressive manner. R.N. informed her that her behavior was inappropriate and asked her to leave
the floor. Appellant refused. R.N. then asked the receptionist to summon the police and she
activated the panic button call. The police arrived and asked to see appellant’s identification. They
escorted her to her office to retrieve her badge.
The employing establishment contended that appellant was not arrested, accosted, or
subject to unwarranted display of force. It asserted that R.G. had no right to union representation,
that she was advised of this, that she refused to leave the area when asked, and that she was
therefore acting on her own volition, not as part of protected union activity. The employing
establishment concluded that appellant was not in the performance of duty.
By decision dated January 19, 2016, OWCP modified its February 24, 2015 decision,
finding that appellant had not established a compensable factor of employment and, thus, an injury
was not sustained in the performance of duty. It noted that there was no evidence that the
employing establishment’s actions regarding the December 18, 2014 meeting were abusive,
erroneous, or improper and found that her reactions were self-generated.
On January 18, 2017 appellant requested reconsideration of the January 19, 2016 decision
on January 18, 2017. She provided an additional narrative statement dated January 14, 2017,
wherein she asserted that on December 18, 2014 she attended a meeting on the fifth floor of the
employing establishment in room 523 to represent R.G. Appellant was ordered to leave the room
and did so. She remained in the hallway, outside of the room awaiting R.G. in case her assistance
was needed. Appellant alleged that she was quiet, that she was not disruptive, and that she was
checking her cellphone for the number of J.M. to ask for advice. She noted that she was so quiet
that the police officers did not notice her and had to ask where she was. When appellant asked
what charges were being leveled against her, one of the officers became red -faced and flustered.
The police officer used an angry voice to tell appellant that she had to leave the fifth floor and that
he had to remove her from the area. Appellant believed that she had no choice but to leave with
the police under their escort. The police officers walked on either side and escorted her to her
fourth floor office. While there, they notified appellant that she was free to go.
In a January 3, 2017 letter, B.A. indicated that R.G. requested union help and that on
December 18, 2014 appellant was engaged in representational functions at the time of her injury.
She noted that she was appellant’s supervisor and that appellant was entitled to official time at the
time of her injury.

4

On January 4, 2017 A.B., an employing establishment administrative assistant, provided a
statement noting that on December 18, 2014 she observed appellant enter the conference room.
She asserted that appellant was asked to leave the room and did so. R.N. then asked A.B. to call
security, which she did. A.B. noted that appellant was in the hallway after leaving the conference
room and did not raise her voice or make noise. She contended that appellant did not cause any
commotion or disturbance from the time when she left the conference room until the police
removed her from the area.
Appellant provided a copy of the FLRA-approved settlement agreement signed by the
acting regional director of the employing establishment on January 23, 2016 and the FLRA notice
to employees which was signed by the employing establishment’s medical center director on
January 24, 2016. Under the FLRA settlement agreement, the employing establishment was
required to ensure that all references to the police encounter with appellant o n December 18, 2014
was expunged from its records, and forbidden to rely on this incident in any future action. It was
also required to post the following notice to all employees:
“On or about December 18, 2014, [the employing establishment] police removed
[appellant] from a location where she was waiting for an employee to exit a
meeting. The [FLRA] statute prohibits an agency from interfering with an
employee’s exercise of protected activity and/or taking an action against an
employee because of the exercise of protected activity.”
The notice further provided that the employing establishment would not interfere with the exercise
of protected activity or take an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
On March 17, 2017 the employing establishment responded to appellant’s January 18,
2017 request for reconsideration. In a statement dated November 3, 2015, A.B., noted that she
was sitting at her desk on December 18, 2014 near room 523 at the employing establishment. She
indicated that appellant was standing right in front of her desk and that she was shaken by her
disruptive behavior, including yelling and screaming. A.B. asserted that appellant was asked to
leave the area and refused to go. R.N. requested that she contact the police.
In an e-mail dated May 28, 2015, R.N. asserted that the December 18, 2014 meeting was
not associated with personnel issues, that the union had no vested interest in attending, and that
both R.G. and the union were made aware of these facts prior to the meeting. He indicated that
the union presence was disruptive and unnecessary. R.N. asked the union officials to leave. He
alleged that appellant became confrontational and initially refused to leave the room. Appellant
then agreed to leave the room, but asserted that she would stand immediately outside the door in
an outer office area. Once in the office area, she then demanded identification from R.N. R.N.
asserted that appellant’s demeanor was loud and aggressive. He informed her that this behavior
was inappropriate and again asked her to leave, but she refused. A.B. was asked to summon the
police and activated a panic button. When the police arrived, they asked to see appellant’s
identification. Appellant did not have identification, and the officer escorted her out of the area.

5

R.N. asserted that she was not engaged in protected union activity and that her disruptive behavior
in the outer office work environment was inappropriate.
In an e-mail dated November 23, 2015, Lt. W.C. noted that on December 18, 2014 he was
called to room 523 due to a disruptive situation. He indicated that he contacted someone in the
office who informed him that they were conducting a meeting, that appellant was being disruptive,
and that person requested that she be escorted out of the office as the meeting did not require union
presence. Lt. W.C. asserted that she was argumentative toward the staff, loud, and disruptive. He
advised appellant that she needed to leave the area and she became argumentative toward him and
told him that it was her right to be in the office. Lt. W.C. escorted her to the union office and
directed her actions to the union president. He alleged that appellant accused him of not knowing
how to do his job.
On April 26, 2017 OWCP provided appellant with a copy of the employing establishment’s
responses and afforded her 20 days to submit comments. On May 15, 2017 appellant responded
and asserted that in the FLRA posting, the employing establishment admitted to interfering with
protected activity and interfering with appellant’s exercise of her rights in accordance with FLRA
statute. She further noted that the settlement agreement included that her interactions with the
employing establishment police on December 18, 2014 would be expunged from the employing
establishment’s records.
By decision dated June 27, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
her reconsideration request was received on January 20, 2017. In a memorandum of telephone
call (Form CA-110) dated September 7, 2017, OWCP’s claims examiner noted reviewing
appellant’s claim file and found that her requests for reconsideration were entered into the
Integrated Federal Employees’ Compensation System (iFECS) on January 18, 19, and 20, 2017.
The claims examiner directed her to either appeal to the Board or to make an additional request
for reconsideration which would not be timely, but noted that the date of her original request for
reconsideration would establish clear evidence of error.
On September 20, 2017 appellant requested reconsideration of the January 19, 2016
decision. She noted that her initial request for reconsideration was received by OWCP on
January 18, 2017 and therefore, was timely.
By decision dated January 8, 2018, OWCP reviewed the merits of appellant’s claim but
denied modification of its January 19, 2016 decision. It found that she had submitted no evidence
to demonstrate that the employing establishment acted in an abusive or improper manner in regard
to the accepted December 18, 2014 employment incident. OWCP further found that the FLRA
settlement agreement did not include an admission of error or abuse on the part of the employing
establishment. It determined that appellant’s emotional reaction was self-generated and not due
to a compensable factor of her employment.
Appellant appealed to the Board, and in its May 1, 2019 decision, 3 the Board set aside the
January 8, 2018 decision and remanded the case for OWCP to request that the employing
3

Id.

6

establishment address her use of official time at 11:00 a.m. on December 18, 2014, when she
alleged that her injury occurred. The Board further directed OWCP to require that the employing
establishment provide documentation establishing whether she was performing a representational
function at the fact-finding interview on December 14, 2018. The Board determined that if the
employing establishment found that appellant was not on official time, she should be advised of
this finding and provided an opportunity to submit relevant evidence on the issues. Following any
further development, OWCP was to issue a de novo decision.
In a May 22, 2019 development letter, OWCP requested that the employing establishment
address appellant’s use of official time on December 18, 2014 at 11:00 a.m. and to provide
documentation establishing her representational function. It further requested that the employing
establishment provide documentation, in the form of appropriate regulations, executive order, or
union agreement covering the specific situation. OWCP noted that in the absence of a full reply
from the employing establishment, it could accept appellant’s allegations as factual.
In a June 28, 2019 letter, the employing establishment responded and asserted that
appellant was not performing a union representational function during the time of her alleged
workplace injury on December 18, 2014 at 11:00 a.m. It noted that prior to the alleged incident,
appellant had represented R.G. in a grievance filed on December 1, 2014. In addressing this
grievance, R.G. also raised quality of medical care concerns. On December 12, 2014 W.C., the
Chief of Staff and the employing establishment deciding official, partially accepted the grievance
and directed the employing establishment to initiate an independent fact-finding by a qualified
pathologist into the issues raised by R.G. regarding validation of laboratory studies which resulted
in the medical quality review scheduled on December 18, 2014. The employing establishment
asserted that on December 18, 2014 it was addressing R.G.’s concerns to ensure improvement in
quality medical care at the facility in accordance with 5 U.S.C. § 7114; 38 U.S.C. §§ 5705, 7311,
and 7422, and its medical bylaws, Article IX. It further asserted that the medical quality review
was conducted for the sole purpose of addressing concerns in medical quality raised by R.G. and
that anything he disclosed during the medical quality review was protected information and could
not be used for any purpose other than improving medical quality of care. The employing
establishment asserted that there was no right to union representation as the medical quality review
was not about R.G., his practice, performance, conduct, or any issues specified as a ba sis for the
grievance.
The employing establishment noted that as union vice president, appellant was authorized
80 percent official time to perform union duties. However, it asserted that on December 18, 2014
at 11:00 a.m. R.G. was not entitled to union representation and appellant was not authorized to
attend the medical quality review. The employing establishment asserted that under 5 U.S.C.
§ 7114, representational rights were limited to formal discussion of a grievance or personnel
policy, practices or general condition of employment, or any examination of an employee in
connection with an investigation if the employee reasonably believes that the examination could
result in disciplinary action and if the employee requests representation. It contended that R.G.
had no reasonable expectation of disciplinary action from the December 18, 2014 medical quality
review. The employing establishment asserted that, therefore, it was under no obligation to allow
union representation during the medical quality review as it was in no way an investigation of R.G.

7

The employing establishment provided copies of Article 49 of the union ’s rights and
privileges, the Bylaws and Rules of the Medical Staff of the employing establishment, Article IX;
5 U.S.C. § 7114, 30 U.S.C. §§ 5705, 7311, and 7422, the grievance filed by R.G. on December 1,
2014, and the response dated December 12, 2014 from W.C.
In a July 5, 2019 response, appellant asserted that she was performing union representation
for R.G. on December 18, 2014. She noted her prior representation of R.G. which had begun with
written counseling he received on October 7, 2014 during his probationary period. Appellant
noted that beginning on November 10, 2014 R.G. was undergoing a Focused Professional Practice
Evaluation (FPPE) which evaluated his ability to communicate effectively with staff, his
productivity in areas requiring close interaction with colleagues, and his professional behavior.
The FPPE required him to institute implementation of calculated ionized calcium in the laboratory
test menu, implemental qualitative confirmation assays for amphetamine, benzodiazepine, and
opiates, as well as correlate immunosuppressant drug testing. She asserted that each of these areas
was directly implicated during the December 18, 2014 medical quality review. Appellant asserted
that while the employing establishment contended that her answers during the medical quality
review could not be used against him, he was asked to resign shortly thereafter. She further
asserted that at the time of the medical quality review he had a reasonable belief that his
participation in this investigation could result in disciplinary action.
Appellant provided a May 3, 2012 letter from the union president indicating that beginning
September 2012 appellant would be on 100 percent official time.
In an undated and unsigned statement, R.G. noted that on October 9, 2014 a critical
component on chemistry analyzers, the indirect ion selective electrodes (ISE) which allowed
measurements of serum, plasma sodium, potassium, and chloride was updated, but not properly
validated. He formulated a plan to repair to the validation of ISE and on December 3, 2014 alerted
W.C. to his concerns about the quality of laboratory testing. W.C. commenced a 38 U.S.C. § 5705
medical quality assurance program review scheduled for December 18, 2014 with the interviewer.
R.G. was informed that his disclosures would not and could not result in a punitive action against
him or other employees so he attended the meeting with union representation which was removed
during the course of the meeting. He alleged that he was then subjected to retaliation for disclosing
a medical quality assurance issue in the December 18, 2014 meeting, for which he was explicitly
told he could not be punished.
By decision dated July 18, 2019, OWCP again denied appellant’s emotional condition
claim finding that the quality review was not associated with a grievance, a change in work
conditions or an investigation where a potential disciplinary action could have been imposed of
misconduct. It determined that she, therefore, was not on official time as a union representative at
the time her alleged emotional condition occurred. OWCP concluded, therefore, that appellant
had not sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
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’

8

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. 4
However, disability is not compensable when it results from factors such as an employee’s fear of
a reduction-in-force, or frustration from not being permitted to work in a particular environment,
or to hold a particular position. 5
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.6 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.7 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. 8
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 9 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 10
The Board has recognized an exception to this general rule. Employees performing
representational functions which entitle them to official time are considered to be in the
performance of duty if injured during the performance of those functions. 11 The underlying
rationale for this exception is that an activity undertaken by an employee in the capacity of a union
official may simultaneously serve the interest of the employer. 12 OWCP’s procedures indicate that
representational functions include authorized activities undertaken by employees on behalf of

4

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
5

Lillian Cutler, id.

6

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
7

C.M., Docket No. 17-1076 (issued November 14, 2018); David C. Lindsey, Jr., 56 ECAB 263, 268 (2005)
Thomas D. McEuen, id.
8

Id.

9

J.G., Docket No. 17-1948 (issued September 13, 2018); Jimmy E. Norred, 36 ECAB 726 (1985).

10

J.G., id.; C.M., Docket No. 10-0753 (issued December 15, 2010).

11
J.G., supra note 9; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing
activities related to the internal business of a labor organization such as soliciting new members or collecting dues are
not considered to be in the performance of duty. The singular fact that one is on paid official time for union
representation is not enough to establish that every interaction during such official time is within the performance of
duty).
12

J.G., supra note 9; Marie Boylan, 45 ECAB 338, 342-43 (1994).

9

other employees pursuant to such employees’ right to representation under statute, regulation,
executive order, or terms of a collective bargaining agreement.13
OWCP’s procedures discuss union representational functions and official time. 14 There
are specific guidelines for case development when union activity may be involved:
“When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether
the employee had been granted official time or, in emergency cases, would have
been granted ‘official time’ if there had been time to request it. If so, the claimant
should be considered to have been in the performance of duty. 15
“If [an] agency states that the employee was not performing an activity for which
official time is allowed, [OWCP] should issue a letter warning [appellant] that the
case will be denied unless additional information is provided, and allowing [30]
days for a response. If there is no timely response from [appellant], a formal
decision should be issued on the grounds that [appellant] is not in the performance
of duty.
“If [appellant] provides evidence contradicting the [employing establishment’s]
position, the official superior should be asked to reply to this evidence, providing
documentation in the form of appropriate regulations, executive order or union
agreement covering the specific situation. [OWCP] will accept the ruling of the
[employing establishment] as to whether a representative was entitled to official
time unless the ruling is later overturned by a duly authorized appellate body.”16
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained an emotional condition when the employing
establishment demanded that she leave a medical quality review meeting and the employing
establishment police escorted her from the hallway outside of the meeting while she was
performing representational union activities on December 18, 2014.
The first issue is whether appellant was in the performance of duty at the time of the alleged
employment incident. In its June 28, 2019 letter, the employing establishment acknowledged that
she utilized official time for 80 percent of her time. It did not specifically address appellant’s
official time schedule and whether or not she was on official time at 11:00 a.m. on
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997).

14

Id.

15

Id.

16

Id.

10

December 18, 2014. Appellant submitted a May 3, 2012 letter from the union president indicating
that, beginning September 2012, she would be on 100 percent official time and a January 3, 2017
letter from B.A., the union president, in which she noted that she was appellant’s supervisor and
that appellant was entitled to official time at the time of her injury. The Board thus finds that the
weight of the evidence of record establishes that appellant was on official time on December 18,
2014 at the time of the alleged employment incident.
The Board has held that the singular fact that one is on paid official time is not enough to
establish that every interaction during such official time is within the performance of duty. 17 The
Board has also required that a claimant be performing a mutually beneficial activity such as a
representational function. 18 The facts of this case establish that the nature of the activity in which
appellant was engaged was representational and therefore of mutual benefit to the union and her
employer.19 Representational functions include authorized activities undertaken by employees on
behalf of other employees pursuant to such employees’ right to representation under statute,
regulation, executive order, or terms of a collective bargaining agreement. 20
The alleged employment incident occurred when appellant was instructed to leave the
medical quality review meeting on December 18, 2014 after she indicated that she would file an
unfair labor practice complaint against the ejecting official, R.N. Appellant further alleged that
while she was waiting outside the meeting room for R.G. to emerge, and checking her cellphone
for J.M.’s telephone number to request advice, the employing establishment police escorted her
back to her office on a different floor. Further, the FLRA-approved settlement agreement indicated
that appellant was acting in a representational capacity when the employing esta blishment police
removed her from the meeting location. As appellant was on official time and performing
representational functions, the Board finds that she was in the performance of duty at the time of
the December 18, 2014 employment incident. 21
While the Board finds that appellant was in the performance of duty at the time of the
December 18, 2014 incident, she must also establish a compensable factor of employment.
Appellant has not attributed her emotional condition to any of the regular or specially
assigned duties of her position as a nurse. Rather, she has alleged error and abuse in administrative
matters by the employing establishment. As a general rule, a claimant’s reaction to administrative

17

J.S., Docket No. 14-1532 (issued December 4, 2015).

18

J.G., supra note 9; Ray C. Van Tassell, Jr., 44 ECAB 316 (1992).

19

See Bernard Redmond, 45 ECAB 298 (1994); Ray C. Van Tassell, Jr., id. (the Board has adopted a mutual benefit
approach to determining if union activities occurred in the performance of duty, therefore activities related to the
internal business of a labor organization, such as soliciting new members or collecting dues are not included).
20

Marie Boylan, 45 ECAB 338 (1994).

21

Wayne F. Therrien, Docket No. 97-2604 (issued December 9, 1999). See also Kelly Y. Simpson, 57 ECAB 197
(2005) (the Board found that the claimant was in a representational status at the time of her injury despite, the
employing establishment’s disagreement).

11

or personnel matters falls outside the scope of FECA. 22 Absent evidence establishing error or
abuse, a claimant’s disagreement or dislike of a managerial action is not a compensable factor of
employment. Appellant has submitted corroborative evidence of error or abuse in the
administrative actions of the employing establishment demanding that she leave the medical
quality review meeting and the employing establishment police escorting her from the hallway. In
this regard, the FLRA-approved settlement agreement required the employing establishment to
expunge all references to the encounter between appellant and its police from its records and
forbade it to rely on this incident in any future action. It also required the employing establishment
to post a notice that on or about December 18, 2014, the employing establishment police had
removed appellant from a location where she was waiting for an employee to exit a meeting. It
noted that its statute prohibited an agency from interfering with an employee ’s exercise of
protected activity and/or taking an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
The Board thus finds that appellant has submitted sufficient evidence to establish error or
abuse by the employing establishment in demanding that she leave the medical quality review
meeting and escorting her from the hallway on December 18, 2014. As appellant has established
a compensable employment factor the case presents a medical question regarding whether her
emotional condition resulted from the compensable employment factor. OWCP determined that
there were no compensable employment factors and thus did not analyze or develop the medical
evidence. The case will be remanded to OWCP for this purpose. 23 After such further development
as deemed necessary, it should issue a de novo decision on this matter.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

E.M., Docket No. 19-0156 (issued May 23, 2019),

23

Id.; see also K.J., Docket No. 17-1851 (issued September 25, 2019); T.F., Docket No. 12-0439 (issued
August 20, 2012).

12

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2019 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent with
this decision of the Board.
Issued: March 17, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

13