United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
U.S. POSTAL SERVICE, TORRANCE POST
OFFICE, Torrance, CA, Employer
__________________________________________

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

Docket No. 16-0091
Issued: August 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 21, 2015 appellant filed a timely appeal from an August 27, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition causally related to factors of her federal employment.

1

Appellant also filed a timely request for oral argument. By order dated May 6, 2016 the Board, after exercising
its discretion, denied her request as her arguments could be adequately addressed in a decision based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 16-0091 (issued May 6, 2016).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 17, 2014 appellant, then a 63-year-old data collection technician, filed an
occupational disease claim (Form CA-2) alleging that she was exposed to workplace violence by
a coworker who took his anger out on her on or about 4:30 a.m. on September 17, 2014. She
stopped work on September 18, 2014. Appellant’s supervisor reported that the claim should be
for a traumatic injury, not an occupational disease. She indicated that appellant first reported the
condition to her on November 25, 2014.
In a November 17, 2014 statement, appellant stated that on September 17, 2014, at
approximately 4:30 a.m., she was exposed to unsafe, hostile, and aggressive workplace violence.
A male coworker came to work angry and lashed out at her. He was very irrational, asking what
time appellant came in, what she was doing, and berating her in the presence of other clerks.
Appellant finally told a coworker that she was getting angry and hurt because of the way he was
behaving and treating her. The coworker apologized and told appellant that none of it was her
fault. He then turned from her and started yelling at another female clerk, demanding his mail.
Appellant alleged that the coworker continued to act out until 7:00 a.m. She alleged that his
behavior scared her and her body started to shake uncontrollably. Appellant called her
supervisor and reported that the coworker’s behavior was not acceptable and that it made her
angry, hurt, and humiliated. She reported that her supervisor told her that the coworker was
having a problem at home with his sick mother. Appellant indicated that her supervisor came to
the worksite, but the issue was not resolved. She stated that she went home feeling humiliated.
Appellant felt tearful until night time as she kept playing the incident over and over. She
indicated that she had a hard time functioning at home and she had irregular heartbeats. On
September 18, 2014 appellant notified her manager of her coworker’s actions and she stayed out
of work on September 19, 2014 as she was not feeling well. She indicated that, since the
incident with her coworker, she has not slept well, has not been eating well, and could not
concentrate. Appellant was also irritable, tearful, and anxious. She indicated that she was seeing
a psychiatrist.
In a November 10, 2014 report, Dr. James Jen Kin, a psychiatrist, indicated that appellant
was first seen on October 14, 2014 with several repeat visits, for a hostile work environment
involving her and a coworker, which resulted in her feeling humiliated and angry. Appellant
continued to hear the coworker berating her. Dr. Kin diagnosed major depression, which he
opined that was related to the job-related incident. He advised that appellant had no history,
symptoms, or problems before this incident and that she had decompensating symptoms
following this incident.
In a December 4, 2014 letter, the employing establishment indicated that the claim was
for traumatic injury. It also provided a witness statement from Supervisor E.P., who witnessed
what occurred on the morning of September 17, 2014 between appellant and her coworker. In an
October 10, 2014 e-mail, E.P. indicated that, on the day of the origin-destination information
system (ODIS) test, the coworker and appellant arrived at the employing establishment. While
he was doing his reports, he saw the coworker explaining to her how large the volume was going
to be for her ODIS test. E.P. was not being rude, nor was he yelling at appellant. He indicated
that the coworker’s voice was a little loud due to clerks unloading the truck and pulling
equipment into the building, which created loud noise. E.P. believed that it was all just a

2

misunderstanding and that appellant misunderstood, but that the coworker was just trying to help
her.
In a December 29, 2014 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim as it was insufficient to support that she was injured while
performing any duty of her employment. It requested that she provide additional factual
information by completing the attached questionnaire and to submit medical evidence in which
her physician provides an opinion supported by a medical explanation regarding the cause of her
emotional condition. Appellant was afforded 30 days to submit the requested information.
In a February 4, 2015 statement, appellant responded to OWCP’s questions pertaining to
the factual aspects of her claim. She alleged that the coworker arrived at work on September 17,
2014 at about 4:30 a.m., very angry, hostile, and aggressive. Appellant was met with hostility
from the coworker asking “who sent and called the station of the upcoming test, why this new
supervisor, [E.P.,] which our office has no knowledge of, was not notified or talked to on the
[tele]phone, when I notified the station about our upcoming test.” She noted that E.P. was the
coworker’s friend. Appellant stated that the coworker was upset, and yelled, demanding to know
why she had not talked to E.P. and why he did not receive their e-mail notification. She
indicated that she had to keep answering his questions in front of E.P. and she was embarrassed
and humiliated. Appellant left the coworker and E.P. after the confrontation and went to her
work area. She stated that the coworker came to her work area again, very angry and
confrontational, and continued to berate her. Appellant indicated that the coworker was not
happy because E.P. did not place everything needed for his test at his station. She stated that
setting up and putting things for the test was the coworker’s job, not the supervisor’s job.
Appellant also alleged that the coworker continued to harass her by asking her what time she had
reported to the station and what she was doing. She alleged that he crossed the line by asking her
for her reporting time as he was not her supervisor or manager, rather they were on lateral
employees. Appellant told him that she had enough of his blaming, bullying, and harassment, he
then backed down, apologized, and stated that nothing was her fault. She explained that the E.P.
was not on the e-mail list, so he did not get the notification that she and her manager had sent.
Appellant stated that she called her supervisor that morning to report that the coworker was out
of control. Her supervisor was very upset and apologetic. Appellant stated that her supervisor
told her that the coworker should have called her or their manager if he had a problem with her.
Appellant’s supervisor also told her that the coworker had been having a lot of family problems
and dealing with a lot of issues. Her supervisor asked her to finish her test and go home.
Appellant’s supervisor stated that she would come over to the station to talk to the coworker.
Appellant indicated that her supervisor showed up at the station later that morning and she was
told to go home. On her way out of the station, the coworker bid her goodbye sarcastically. An
employee who heard him and saw his demeanor told him to chill out and go home. Appellant
also described her reactions to the incident. She indicated that she was scared and had a fear of
going to work. Appellant was also suicidal and had some physical ailments. She alleged that
she had not previously experienced an emotional condition.
Appellant also submitted an After Visit Summary from Providence Health & Services,
health screening results and clinical summary notes and medical reports from Dr. Kin.

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By decision dated August 27, 2015, OWCP denied appellant’s claim for compensation,
finding that she had not established a compensable work factor. Specifically, it found that she
had not provided witness statements to support her claim that her coworker acted in a verbally
abusive manner toward her.
On appeal, appellant challenged the statement of E.P.
LEGAL PRECEDENT
Appellant has the burden of establishing 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 factors of his or her federal employment.3 This burden includes the
submission of detailed description of the employment factors or conditions, which appellant
believes caused or adversely affected the condition or conditions for which compensation is
claimed.4
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 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.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force his or her frustration from not being permitted to work in a particular environment or to
hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.7 However,
the Board has 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.8 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.9
3

Pamela R. Rice, 38 ECAB 838 (1987).

4

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

5

Supra note 2; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff d on recon., 42 ECAB
556 (1991).
8

William H. Fortner, 49 ECAB 324 (1998).

9

Ruth S. Johnson, 46 ECAB 237 (1994).

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To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.10
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.11
The Board has also held that being spoken to in a raised or harsh voice does not in itself
constitute verbal abuse or harassment.12
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.13 In claims for a mental disability attributed to work-related
stress, the claimant must submit factual evidence in support of her allegations of stress from
harassment or a difficult working relationship. The claimant must specifically delineate those
factors or incidents to which the emotional condition is attributed and submit supporting factual
evidence verifying that the implicated work situations or incidents occurred as alleged. Vague or
general allegations of perceived harassment, abuse, or difficulty arising in the employment are
insufficient to give rise to compensability under FECA. Based on the evidence submitted by the
claimant and the employing establishment, OWCP is then required to make factual findings
which are reviewable by the Board. The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by OWCP and the Board.14
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.15 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

10

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

11

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

12

Beverly R. Jones, 55 ECAB 411, 418 (2004).

13

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
14

E.C., Docket No. 15-0823 (issued February 2, 2016); Paul Trotman-Hall, 45 ECAB 229 (1993) (Groom,
Alternate Member, concurring).
15

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

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record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.16
ANALYSIS
In the present case, appellant has alleged that she sustained an emotional condition as a
result of her federal employment. The Board finds that she did not discuss in detail her work
duties or allege a reaction to the performance of her regular or specially assigned duties.17
Rather, appellant has alleged that a male coworker created a hostile work environment when he
walked up to her on September 17, 2014 and began berating her in front of other coworkers
about work-related matters.
For harassment and discrimination to give rise to compensable disability, there must be
evidence that harassment or discrimination did in fact occur. Mere perceptions of harassment or
discrimination are not compensable.18 A claimant must substantiate allegations of harassment
and discrimination with probative and reliable evidence.19 Harassment and discrimination by
supervisors and coworkers, if established as occurring and arising from the performance of work
duties, can constitute a compensable work factor.20 Appellant’s allegation that she was berated
by a coworker on September 17, 2014 was countered by E.P., a supervisor, who witnessed the
exchange between appellant and her coworker. According to E.P., the coworker was not rude
toward appellant, but rather was helping her by explaining how large the volume would be for
her ODIS test. He also attributed the coworker’s raised voice to the noisy room. The statement
from E.P. provided a reasonable explanation of what transpired between appellant and the
coworker on September 17, 2014 at 4:30 a.m. There is also no factual evidence to support
appellant’s allegation that the coworker reapproached her at her workstation later that morning
and continued to berate her. Appellant did not submit any factual evidence in support of her
allegations and thus has not established a compensable work factor.
To the extent appellant alleged that she was verbally abused by her coworker, the Board
has generally held that being spoken to in a raised or harsh voice does not of itself constitute
verbal abuse or harassment.21 In the instances she described above, the Board notes that the fact
that a coworker questioned her in a raised tone of voice about work matters is insufficient, by
itself, to warrant a finding that the coworker’s actions amounted to verbal abuse. Appellant has
not shown how a possible loud or raised voice rose to the level of verbal abuse or otherwise falls
within the coverage of FECA.22 Additionally, she presented no corroborating evidence of any
16

Id.

17

See Cutler, supra note 5.

18

Doretha M. Belnavis, 57 ECAB 311 (2006).

19

Robert Breeden, 57 ECAB 622 (2006).

20

Doretha M. Belnavis, 57 ECAB 311 (2006).

21

T.G., 58 ECAB 189 (2006).

22

See Peter D. Butt, Jr., 56 ECAB 117 (2004).

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yelling by the coworker and E.P. indicated that the coworker’s raised voice was due to the noisy
room. While appellant challenged E.P.’s statement, noting that he was a friend of the coworker,
she did not provide any witness statements to support her claim that the coworker acted in an
abusive manner towards her. Therefore, she has not met her burden of proof to establish verbal
abuse.
Appellant also expressed disappointment with regard to how her supervisor handled the
September 17, 2014 incident with her coworker. The manner in which a supervisor exercises his
or her discretion generally falls outside FECA’s coverage. This principle recognizes that
supervisors must be allowed to perform their duties, and at times employees will disagree with
their supervisor’s actions. Mere dislike or disagreement with certain supervisory actions will not
be compensable absent error or abuse on the part of the supervisor.23 There is no evidence that
appellant’s supervisor committed error or abuse by coming to the employing establishment and
talking to her coworker. Thus, this is not a compensable employment factor.
Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors.24
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.

23

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

24

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the August 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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FARGO VETERANS ADMINISTRATION
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HEALTH CARE SYSTEM, Fargo, ND, Employer )
__________________________________________ )
K.L., Appellant

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

Docket No. 13-1758
Issued: August 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 18, 2013 appellant filed a timely appeal from the May 30, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied her emotional condition
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On March 6, 2013 appellant, then a 43-year-old facility revenue technician, filed an
occupational disease claim alleging severe anxiety and depression as a result of her federal
1

5 U.S.C. § 8101 et seq.

employment. She addressed the behavior of her first-line supervisor, Greg Wheelden: “I could
not come into work without extreme anxiety. I shake when I am around him (Greg Wheelden),
have thrown up in the parking lot before coming to work, have sat and my desk and cried. I cry
everyday since being subjected to his behavior.”
In a statement supporting her claim, appellant related that in August 2008 she first
worked for her supervisor. She alleged that, from the beginning, it was obvious who his favorite
employees were. Mr. Wheelden would only say good morning to certain people depending on
his mood. There were times he would walk by the billers and say, “Bill, bill, bill,” then go to the
accounts receivable group, pull up a chair and chat for an hour. Appellant alleged that this
happened nearly everyday.
Appellant contributed to a breakfast club because she wanted to be included and possibly
become one of her supervisor’s favorites. “I knew if I could became one of the select few
favorites I would be treated with respect.”
After a year or more, Mr. Wheelden called appellant into his office and complained about
another employee. Appellant was shocked by what he stated, how he stated it and that he called
her in specifically to talk about it. “This scared me to death. To this day I am still afraid of
Mr. Wheelden and what he will do to me.” Appellant stated that she did what she could to get on
his good side. She would go to the gas station on breaks or to get his fountain pop at lunchtime.
When she went to lunch, appellant always asked if he wanted anything. “I bought Greg pops and
lunches many many times in an effort to get on his good side in hopes of being treated better.”
Appellant alleged that every morning Mr. Wheelden would go to female coworkers rub
their shoulders and say, “Good morning, sweetie.” Once in a while Mr. Wheelden would say
good morning to the billers, but it was uncommon.
Appellant alleged that several people in the supervisor’s group of favorites would
consistently take long breaks or long lunches. When she came back from lunch late, she was
required to put in 15 minutes of annual leave. Appellant would apologize to the supervisor any
time she was late or going to be gone. She felt that she needed to explain her reasons for being
absent because she did not want to receive the silent treatment. Even when appellant explained
and apologized, Mr. Wheelden would not say a word to her for at least two days. He told her it
was not necessary to put comments on leave requests. “I believe now that he did not want these
comments in to document that he was treating me differently than the AR staff.”
Appellant listed dozens of dated incidents and e-mails to support that Mr. Wheelden
treated his favorites differently and gave her the silent treatment. On April 24, 2012 she
explained to Mr. Wheelden that she would not be at work because she was helping her father
find a home for her grandmother, with whom she was very close. Appellant thought he was very
cold to her because she was not one of his favorites: “unless you have something very Urgent, I
would like you to be here the entire week.” If she had been one of his favorites, Mr. Wheelden’s
tone would have been more like the e-mail he sent a coworker on March 23, 2011: “I know the
interstate was closed all day and we missed you, maybe we will see you in the morning.” When
a coworker’s aunt was sick, she heard Mr. Wheelden say, “Good luck, do what you have to do,
family is important.” When it came to anyone outside of his favorites group, he was very cold.

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A few weeks after the coworker’s aunt was sick, appellant’s uncle committed suicide.
She mentioned it to everyone at work hoping that someone would be sympathetic. “I was wrong.
In fact not one person stated that they were sorry for my loss. I never got a card, no flowers,
nothing.” Moreover, the timekeeper told appellant that she would have to use annual leave
instead of sick leave for family care or bereavement. When appellant confirmed that she could
use the latter and informed the timekeeper, the timekeeper abruptly asked: “Well what are you
going to do because I need to know?” Appellant was taken aback and stated to leave it the way it
was; she did not want to cause problems or disagreement.
Appellant did not feel she was treated fairly because a less-senior coworker was receiving
training, but her request was denied. She noted that Mr. Wheelden, who was supposed to be on
leave, found out from coworkers when appellant would be late. Although, Mr. Wheelden told
appellant he was not singling her out and that he had not seen anyone else who was tardy, she
explained he was in no position to, as his shift started after they arrived at work. Appellant
alleged that one coworker was late every day from 3 to 10 minutes. One day, another coworker
was 10 minutes late. Appellant did not report her, but she believed this coworker did not use
leave. Although she identified these coworkers by name, she stated: “I am not looking to report
other employees. I am looking for equal and fair treatment.” Appellant took full responsibility
for being late, but she did not feel it was appropriate to single out one employee among six and
make them use leave for being late if all employees were not held to the same standard, including
the supervisor.
On one day, appellant felt she had to explain to the supervisor that she was at work but in
the bathroom, otherwise she would have to put in for leave. “This is how terrified I am of him. I
feel like I have to tell him when I am in the bathroom.”
Appellant explained how she wanted people to like her and how she tried everyday to say
something nice. She went out of her way to try and form some type of professional/friendly
relationship with her coworkers, but as one e-mail showed, only one person stated something
back. Appellant sent an e-mail to Mr. Wheelden letting him know what was going on. “I did
this all the time so he would see that I am being a team player, trying and to keep him in the
loop. As you can see -- no reply -- Greg most of the time, would not reply back which made me
feel insignificant and that I was invisible.”
Appellant stated that a new coworker began to treat her the same way the supervisor did:
“This day was another one of those days I felt alone. The new girl at first seemed
like she was like me. I thought finally I will have someone who will be my
partner so to speak. We can work as a team and help each other out. I actually
gave her all the test answers for her blackboard training…. She asked me not to
tell the other girls or Greg so I didn’t. Once I gave her the answers everything
seemed so different. She would only be nice to me or talk to me when Des was
gone. She was a different person when others were around but when it was just
her and I, then I was good enough to talk to. This is how Greg would treat me. If
it was just him and I he would build me up. If others are around he would knock
me back down. He would ignore me, give me the silent treatment for taking

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leave, refuse to respond to e-mails and even deny me the common courtesy of a
good morning or good night.”
Appellant stated that Mr. Wheelden routinely talked to employees about other employees.
Whether it was personal or concerned leave status, “when it comes to [him], nothing is
confidential.”
On February 20, 2013 appellant stated that she cried all day because of how she was
treated. Although Mr. Wheelden wanted her to find a work buddy and told her several times that
it was great she found one; but she learned from her work buddy that the supervisor was trying to
get the work buddy in trouble by e-mailing the work buddy’s boss and asking whether the work
buddy was still helping appellant with her prosthetics report. “I just know now from day one
when Greg sent that e-mail to Sherri stating he couldn’t wait to get rid of us that I was set up for
failure from the very beginning.” Appellant stated that Greg played on her emotions and
apparently thought it was entertaining to build her up and then knock her down. “This was the
day I finally broke. I could not face going back to that office and being treated the way I was
treated. Something had to change.”
The record contains a photo image of a computer screen showing an e-mail response
from Mr. Wheelden to a program application specialist regarding upload results and extract file
transfers: “I guess, isn’t it time to retire yet? 7 staff from my shop can retire with a 25,000.00
buyout and are to be gone no later than May 11th, to be honest, I hope they all go, they are all a
huge pain in the butt.”
Statements from other coworkers described their interactions working for Mr. Wheelden.
A union representative stated that he thought Mr. Wheelden was unqualified to be a manager and
how the supervisor liked to pit his employees against one another. He stated that Mr. Wheelden
was a master manipulator and how it affected the mental health of two employees. According to
the union representative, Mr. Wheelden stated that he wanted to rid himself of appellant and
stated the same thing about two other employees.
An employee whose desk was by the break room, stated that she occasionally overheard
conversations. She stated that employees had kept appellant from new information and “from
just basically helping her with things without her feeling like she was beneath them.” One day,
appellant asked how do to something with the margins in a spreadsheet and the employee replied
with a very quick “you just click here and here,” then continued with her work not caring
whether appellant understood. “They whisper to each other all of the time over there and
[appellant] is the only one who is left out. Even the new gal has been taken in to this click [sic]
and whispers with them.” The employee stated that “those 3 girls” and Mr. Wheelden had
completely alienated appellant from that section. She stated that appellant worked in a hostile
work environment.
Another employee stated that Mr. Wheelden did not treat people equally. Mr. Wheelden
displayed favoritism by giving privileges others were denied. Not only did he not resolve
conflicts, he created a hostile work environment with his management style. The employee
noted how the breakfast club created hostility with the outsiders until employees from outside the
section complained. Mr. Wheelden told his favorites they could go to the farmers market for

4

lunch but stated nothing to the other employees. One of his favorites took two 20- to 25-minute
smoking breaks in the morning and afternoon plus long lunches. When the employee was
mentioned to Mr. Wheelden, he became angry. The next day, she received an oral reprimand for
being one to two minutes late for a few days in a row. The employee stated that Mr. Wheelden
created animosity between employees by telling each what they wanted to hear without ever
solving problems.
Another employee, retired, stated that favoritism, gossiping and cruelty happened on a
daily basis. She noted how she was denied a bonus even though she felt her job made a major
contribution. The employee stated Mr. Wheelden sat for hours with his favorites and then
walked by the billers saying, “Get to work!” She stated that the atmosphere was very tense at all
times.
Another employee, recently retired, stated that he and other employees had many
problems with Mr. Wheelden and that grievances were filed. He called Mr. Wheelden deceitful,
a liar and someone who showed favoritism. “Whatever difficulty [appellant] is having with
Mr. Wheelden, I’m willing to bet that [he] is the root of [it]. Mr. Wheelden has no compassion
for his employees, he [is] very cold hearted and thinks only of himself and what makes him look
good.”
In a decision dated May 30, 2013, OWCP denied appellant’s claim. It reviewed the many
incidents alleged in the submitted records and found that she did not establish a compensable
factor of employment. OWCP determined that the administrative actions of Mr. Wheelden were
generally not compensable factors of employment and that appellant did not submit evidence of
error or abuse. Appellant’s perception of how Mr. Wheelden viewed her was considered selfgenerated and not arising out of the employment.
On appeal, appellant referred to the statements of other employees who worked for the
supervisor, as they would show an ongoing problem with him. She contended that he lied about
everything and that she had never lied about anything. Appellant stated that Mr. Wheelden
continued to mistreat her and that she wanted her annual leave restored.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 When an employee experiences emotional
stress in carrying out his or her employment duties or has fear and anxiety regarding his or her
ability to carry out his or her duties and the medical evidence establishes that the disability
resulted from his or her emotional reaction to such situation, the disability is generally regarded
as due to an injury arising out of and in the course of employment. This is true when the
employee’s disability resulted from his or her emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of her work. By contrast,
there are disabilities having some kind of causal connection with the employment that are not
covered under workers’ compensation because they are not found to have arisen out of
employment, such as when disability results from an employee’s fear of a reduction-in-force, job
2

Id. at § 8102(a).

5

insecurity or frustration from not being permitted to work in a particular environment or to hold a
particular position.3
Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.4 The Board has held that actions of the employing establishment which the
employee characterizes as harassment or discrimination may constitute a factor of employment
giving rise to coverage under FECA, but there must be some evidence that harassment or
discrimination did in fact occur. As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim.5 Mere perceptions and feelings of
harassment or discrimination will not support an award of compensation. The claimant must
substantiate such allegations with probative and reliable evidence.6 The primary reason for
requiring factual evidence from the claimant in support of his allegation of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by OWCP and the Board.7
It is well settled that an employee’s reaction to supervision is not a compensable factor of
employment under Cutler.8 Complaints about the manner in which a supervisor performs his or
her duties or the manner in which a supervisor exercises his or her discretion fall, as a rule,
outside the scope of coverage provided by FECA. This principle recognizes that a supervisor or
manager must be allowed to perform his or her duties and that employees will, at times, dislike
the actions taken. Mere disagreement or dislike of a supervisory or managerial action is not
compensable, absent evidence of error or abuse.9
3

Lillian Cutler, 28 ECAB 125 (1976).

4

Thomas D. McEuen, 41 ECAB 387 (1990), reff’d on recon., 42 ECAB 566, 572-73 (1991).

5

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
6

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
7

Paul Trotman-Hall, 45 ECAB 229 (1993) (Michael E. Groom, Alternate Member, concurring).

8

Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable,
whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke,
51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor
spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable,
as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an
administrative capacity and as such, are outside the coverage of FECA); Frank A. Catapano, 46 ECAB 297 (1994)
(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of
managerial error or abuse); Rudy Madril, 45 ECAB 602 (1994) (where the employee questioned his supervisor’s
instructions to move from belt number five to belt number six and unload mail and became upset because he felt he
was being pushed and picked on, the Board found that the incident was not a compensable factor of employment).
9

T.G., 58 ECAB 189 (2006).

6

ANALYSIS
The Board notes that appellant did not attribute her emotional condition to the
performance of her regular or specially assigned duties as a revenue technician under Cutler.
Rather, appellant contends that her emotional condition is related to actions by her supervisor.
As noted in McEuen, complaints about the manner in which a supervisor performs his duties or
the manner in which a supervisor exercises his discretion falls outside the scope of coverage
provided by FECA. A manager’s style, per se, is not a compensable factor of employment. It
must be established factually that the manager committed error or abuse to support a
compensable factor pertaining to any administrative or personnel matter. Similarly, allegations
pertaining to perceived instances of harassment or discrimination must be established by
probative factual evidence.
The record in this case contains appellant’s multiple allegations pertaining to actions of
her supervisor. The Board finds that she did not submit sufficient evidence to establish her
allegations as factual. The statements of appellant’s coworkers relate their general impressions
as to his management style and perceived lack of compassion. The statements do not provide
sufficient information as to specific instances to support error or abuse on the part of the
supervisor with regard to time, place or parties involved. Further, there is no formal finding by
the MSPB or EEOC or other administrative body that Mr. Wheelden violated a specific rule or
regulation or policy in his interactions with appellant.10 There is only appellant’s allegation that
he had favorites among the employees and lacked management and people skills. She noted that
he was intimate with certain employees in accounts receivable but not in billing. Appellant
contributed to a breakfast club and performed favors for her supervisor; but found that they were
not reciprocated. She suspected, but did not prove, that Mr. Wheelden selectively enforced leave
requirements or policies concerning training. The evidence of record is insufficient to establish
that he violated any specific rule regarding confidential information. Appellant alleged that
Mr. Wheelden would give her the silent treatment. She saw differences in how he responded to
her personal loss and those of other employees. Appellant felt he treated her coldly. She
perceived that he would build her up when he was alone with her, but then knock her down when
she was not around in order to set her up for failure. The Board notes that appellant’s feelings of
job insecurity, without evidence of error or abuse, are not a compensable factor of employment.11
Such allegations, unsupported by evidentiary proof of administrative error or abuse, are
not sufficient to establish a compensable factor of employment. Absent probative factual
evidence, her allegations are also not sufficient to establish harassment or discrimination on the
part of her supervisor. Workers’ compensation does not apply to each and every injury or illness

10

E.g., R.G., Docket No. 10-947 (issued April 25, 2011) (where an arbitrator’s decision demonstrated that the
employing establishment erred in prematurely suspending the claimant from work, the record established a
compensable factor of employment).
11

See Robert Breeden, 57 ECAB 622 (2006).

7

that is somehow related to an employee’s employment.12 Mere perceptions of harassment or
discrimination are not compensable.13
Accordingly, the Board finds that appellant has not met her burden of proof to establish
that she sustained an emotional condition in the performance of duty. The Board will affirm the
May 30, 2013 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.14
Issued: August 7, 2014
Washington, DC

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

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

12

Supra note 3.

13

See Dorthea M. Belnavis, 57 ECAB 311 (2006).

14

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Richmond, VA, Employer
__________________________________________

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

Docket No. 18-1152
Issued: April 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 17, 2018 appellant, through counsel, filed a timely appeal from an April 19, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the April 19, 2018 merit 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.

ISSUES
The issues are: (1) whether appellant has received an overpayment of compensation in the
amount of $15,521.26 as he concurrently received Office of Personnel Management (OPM)
retirement benefits while receiving FECA benefits for the period February 28, 2017 to March 3,
2018; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On January 13, 2009 appellant, then a 52-year-old supply clerk, filed a traumatic injury
claim (Form CA-1) alleging that on January 8, 2009 he fell over a large box in the area behind the
cash register while in the performance of duty. He alleged that he injured his neck, hands, back,
and right thigh. Appellant stopped work on January 8, 2009.
OWCP initially accepted appellant’s claim for myalgia, myositis, not otherwise specified,
and arthropathy, multiple sites. On September 30, 2016 it expanded acceptance of the claim to
include spinal stenosis, lumbar region, sciatica, and acquired spondylolisthesis. OWCP paid
appellant wage-loss compensation on the supplemental rolls as of February 23, 2009, and then on
the periodic compensation rolls commencing November 22, 2009.
In a letter dated November 25, 2009, OWCP advised appellant that he was being placed on
the periodic compensation rolls and that he would receive a regular net payment of $1,044.64 for
the period November 22 to December 19, 2009 and every 28 days thereafter. It explained that he
must report any retirement income, disability income, or compensation benefits from any federal
agency. OWCP advised that a recipient of compensation benefits under FECA was not permitted
to receive benefits under certain other federal programs, including the Civil Service Retirement
System.
On May 28, 2017 appellant elected to receive retirement benefits from OPM.
In a letter dated June 23, 2017, OWCP advised appellant that his monthly FECA benefits
were $1,328.00 and that it had been informed that he might be receiving benefits from OPM, which
was a prohibited dual benefit. It advised him of the actions he could take regarding his benefits.
In a July 5, 2017 letter, OWCP contacted OPM providing notification that appellant had
elected to receive OPM benefit commencing May 28, 2017 and provided a copy of the election
form.
In a signed letter dated July 24, 2017, appellant advised his election to receive FECA
benefits effective that date.
In a letter dated September 1, 2017, OWCP advised OPM that appellant elected to receive
OPM retirement benefits effective May 28, 2017, however, after learning that he would not receive
his OPM benefits for nine months, he elected to continue receiving FECA benefits until “around
February 28, 2017.”4 It further advised OPM that it retroactively reinstated his FECA benefits

4

OWCP indicated February 28, 2017, but this was an error as appellant had elected to receive benefits from OPM
effective February 28, 2018, as noted later in his letter.

2

from May 28, 2017 and that he elected to receive benefits from OPM effective February 28, 2018,
in lieu of benefits under FECA.
In a letter to OPM dated January 26, 2018, appellant indicated that he was electing to
receive disability retirement benefits, effective February 28, 2018, and that he signed a release of
“OWCP workers’ compensation benefits” effective January 26, 2018, in order to receive his OPM
benefits beginning on February 28, 2018.
In a letter dated March 7, 2018, OWCP issued a preliminary determination that an
overpayment had been created in the amount of $15,521.26 for the period February 28, 2017
through March 3, 2018. It explained that appellant submitted an application to receive benefits
from OPM effective February 28, 2017 and continued to receive benefits from OWCP
concurrently until March 3, 2018. OWCP noted that he could not receive payments from both
programs concurrently. In an attached worksheet it calculated the overpayment based on the
amounts received from OWCP which included $46.50 for the day of February 28, 2017,
$17,311.428 for the period March 1, 2017 to February 28, 2018, and $145.39 for the period
March 1 to 3, 2018. OWCP calculated the gross benefits from OWCP as $17,503.31, subtracted
deductions of $1,982.05, and concluded that an overpayment in the amount of $15,521.26 had
been created. It advised appellant that he was without fault in the creation of the overpayment
because he was not aware, nor could he reasonably be aware, that OWCP had paid compensation
incorrectly. OWCP also provided him with an Overpayment Recovery Questionnaire (Form
OWCP-20) and informed appellant of his appeal rights.
On March 15, 2018 appellant completed the Form OWCP-20. He contested the
overpayment and provided a breakdown of his monthly income and expenses. Appellant reported
a total monthly income of $82.00 from social security benefits and total monthly expenses of
$1,540.56. Regarding assets, he indicated that he had $3.00 cash on hand, $82.19 in a checking
account, savings of $2.25, no stocks or bonds, and $800.00 of personal property. Appellant
reported his bills and monthly expenses amounts including rent of $761.56, food of $160.00,
clothing $00.00, utilities of $344.00, miscellaneous expenses of $225.00, VACU credit card of
$25.00, and a Walmart credit card of $25.00. He noted that his rent and utilities were split with
his roommate. In a letter dated April 18, 2018, OWCP instructed OPM that appellant had elected
to receive benefits from OPM effective February 28, 2017. It instructed OPM to commence
monthly annuity payments effective that date and to thereafter reimburse OWCP in the amount of
$15,521.26 for FECA benefits paid for the period February 28, 2017 to March 3, 2018.
By decision dated April 19, 2018, OWCP finalized the preliminary determination
regarding the fact and amount of overpayment and found that appellant was without fault in the
creation of the overpayment in the amount of $15,521.26. It noted that he responded to the
preliminary determination by completing the OWCP-20 form. OWCP found, however, that the
information provided was insufficient to justify waiver of recovery of the overpayment. It further
found that appellant had received benefits from OPM, but the amount he had received was not
reported on the OWCP-20 form. OWCP advised that the overpayment would be recovered through
payments in the amount of $50.00 dollars per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
3

performance of duty.5 Section 8116(a) provides that, while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being compensated
for under FECA.6 Section 10.421(a) of OWCP’s implementing regulations provides that a
beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity.7 The beneficiary must elect the benefit that he or she wishes to receive.8 OWCP
procedures also explain that the employee must make an election between FECA benefits and
OPM benefits. The employee has the right to elect the monetary benefit which is the more
advantageous.9
Under section 8116 of FECA, an injured employee must make an election between
compensation for disability and retirement pay.10 OWCP procedures provide that, when an
election is required in a disability case, OWCP must provide an OWCP Form CA-1102 to the
employee. This form provides information about the rate of compensation payable and the
employee’s right to elect the more advantageous benefit.11
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision regarding whether OWCP
properly determined that appellant received a $15,521.26 overpayment of compensation for the
period February 28, 2017 to March 3, 2018.12
While appellant elected to receive OPM benefits, rather than FECA benefits on May 28,
2017, the Board notes that, in a letter dated September 1, 2017, OWCP notified OPM that he was
changing his OPM election dated May 28, 2017 to FECA benefits. OWCP explained that he
changed his election because he had been advised that he would not receive his check from OPM
for nine months and he therefore rescinded his OPM election until February 28, 2018.

5

5 U.S.C. § 8102(a).

6

Id. at § 8116(a).

7

20 C.F.R. § 10.421(a).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also
R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued
March 30, 1994).
10

Id. at 2.1000.5 (b) (February 1995).

11

Id.

12

J.J., Docket No. 14-0785 (issued September 3, 2014).

4

An overpayment of FECA benefits occurs due to receipt of prohibited dual benefits if the
claimant elects OPM benefits, but continues to receive FECA benefits during the same time
period.13
The Board finds that OWCP has not established that appellant received an overpayment of
compensation during the period February 28, 2017 through March 3, 2018, as he had elected to
receive FECA benefits until his OPM benefits became effective on February 28, 2018. OWCP
advised OPM that he had changed his election to FECA benefits because he was ineligible to
receive OPM benefits for another nine months, which would be February 2018. Its preliminary
determination did not include the amount of payments he had received from OPM prior to
February 28, 2018, if any. Without a record establishing the exact dollar amount of OPM benefits
actually paid during the time of the alleged dual benefit period with FECA benefits, the Board is
unable to adequately review this aspect of the case. This documentation from OPM is especially
important in this case where OWCP simultaneously sought reimbursement of an overpayment
from appellant, yet also sought reimbursement from OPM by letter dated April 18, 2018. A
claimant is entitled to an overpayment decision that clearly explains how the amount was
calculated.14 The Board finds that the overpayment decision in this case does not provide such an
explanation. Therefore, the fact and amount of overpayment has not been established.
On remand OWCP shall determine when appellant’s OPM benefits commenced and the
amount that he received, including deductions, to determine if he received a prohibited dual benefit
without appropriate offset.15 If he received a prohibited dual benefit, then OWCP should issue a
new preliminary overpayment determination, with an appropriate overpayment action request
form, an overpayment recovery questionnaire, and instructions for him to provide supporting
financial information. After OWCP has further developed the case record, a de novo decision may
be issued.16

13

C.H., Docket No. 18-0772 (issued November 14, 2018).

14

See J.W., Docket No. 15-1163 (issued January 13, 2016); see also O.R., 59 ECAB 432 (2008) with respect to
overpayment decisions, OWCP must provide clear reasoning showing how the overpayment was calculated); see
Jenny M. Drost, 56 ECAB 587 (2005) (to comply with OWCP’s overpayment procedures, an overpayment decision
must contain a clearly written explanation indicating how the overpayment was calculated).
15

See supra note 9, Part 6 -- Debt Management, Identifying and Calculating an Overpayment, Chapter 6.200.2
(September 2018).
16

As the case is not in posture for decision regarding the fact and amount of overpayment, the waiver issue is moot.
See S.F., Docket No. 18-0003 (issued April 19, 2018); see also R.L., Docket No. 11-1251 (issued January 27, 2012).

5

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion.
Issued: April 1, 2019
Washington, DC

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

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

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

6


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

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

Docket No. 14-1147
Issued: September 4, 2014

Case Submitted on the Record

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

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a March 20, 2014 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 is entitled to a schedule award for a permanent impairment
of the right upper extremity.
FACTUAL HISTORY
On January 16, 2007 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim alleging that on January 13, 2007 he fell on his right side when he slipped on a ramp.
OWCP accepted the claim for a right shoulder contusion, right shoulder sprain and an acute right
1

5 U.S.C. § 8101 et seq.

shoulder subscapularis tear. On April 4, 2007 he underwent an authorized open subscapularis
repair of the right shoulder. On May 11, 2007 appellant returned to modified employment.
On June 18, 2013 appellant filed a claim for a schedule award. On June 25, 2013 OWCP
requested a report from his attending physician addressing the extent of any permanent
impairment in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides). By letter dated July 16, 2013,
appellant’s representative advised OWCP that his physician did not provide impairment ratings
and requested a second opinion evaluation.
On August 13, 2013 OWCP referred appellant to Dr. Stanley W. Collis, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated September 3, 2013,
Dr. Collis discussed appellant’s history of injury and current complaints of pain with right
shoulder motion. He diagnosed status postsurgical repair of the right rotator cuff with a good
result. On examination Dr. Collis found no weakness, muscle atrophy or loss of motion of the
right upper extremity. He noted that appellant experienced discomfort with motion in the front
of his shoulder. Dr. Collis stated, “[Appellant] has good right shoulder function. I think he does
have some discomfort of the right shoulder as he states, especially at night, and I think that is due
to the developmental bursitis, not work related.” Dr. Collis advised that appellant had no
impairment of the right upper extremity according to Table 14-34 on page 475 of the A.M.A.,
Guides.
On September 25, 2013 an OWCP medical adviser reviewed Dr. Collis’ report and
concurred with his finding that appellant had no impairment of the right upper extremity. He
noted that appellant had normal range of motion and strength and that the surgical repair of the
partial thickness rotator cuff tear of April 4, 2007 was successful.
By decision dated October 8, 2013, OWCP denied appellant’s claim for a schedule award
on the grounds that the weight of the evidence did not show that he had a permanent impairment
of an extremity.
A September 6, 2013 magnetic resonance imaging scan study of the right shoulder,
received by OWCP on October 22, 2013, showed findings not well visualized due to metal
artifacts. A right shoulder arthrogram obtained on September 25, 2013 revealed a complete tear
of the supraspinatus tendon and amorphous extravasation of contrast in the subscapularis region
and muscle.
On October 28, 2013 appellant, through his representative, requested a review of the
written record. By decision dated March 20, 2014, an OWCP hearing representative affirmed
the October 8, 2013 decision.
On appeal appellant asserts that at the time of the impairment evaluation Dr. Collis was
around 85 years old and no longer a practicing physician. He also alleges that the examination
lasted less than three minutes. He told Dr. Collis that he believed that he had retorn his arm
because of the increased pain. Appellant alleged that Dr. Collis found that his examination was
normal even though he had a completed severed rotator cuff tear at the time of his examination
as established by the arthrogram.

2

LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 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,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5 The claimant has the
burden of proving that the condition for which a schedule award is sought is causally related to
his employment.6
ANALYSIS
OWCP accepted that appellant sustained a right shoulder contusion, right shoulder sprain
and an acute subscapularis tear of the right shoulder due to a January 13, 2007 fall. On April 4,
2007 he underwent a repair of the subscapularis tear.
On June 18, 2013 appellant requested a schedule award. As his attending physician did
not provide impairment evaluations, OWCP referred him to Dr. Collis for a second opinion
examination. On September 3, 2013 Dr. Collis diagnosed a repair of the right rotator cuff with a
good result. On examination he found no weakness, atrophy or loss of motion of the right upper
extremity. Dr. Collis discussed appellant’s complaints of pain in the right shoulder but found
that it resulted from nonemployment-related bursitis. He concluded that he had no impairment
of the right upper extremity. On September 25, 2013 an OWCP medical adviser concurred with
Dr. Collis’ determination that appellant had no right upper extremity impairment. The Board
finds that Dr. Collis provided a comprehensive medical examination based on a detailed physical
examination and review of the radiographic evidence and determined that appellant had no
impairment due to the January 13, 2007 employment injury. Dr. Collis’ opinion thus represents
the weight of the evidence and establishes that appellant is not entitled to a schedule award.7
On appeal appellant asserts that Dr. Collis performed a cursory examination, that he had
reached an advanced age and that he was no longer practicing. He has not, however, submitted
any evidence showing that Dr. Collis was not competent to render a medical opinion.

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 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

See Veronica Williams, 56 ECAB 367 (2005).

7

See J.D., Docket No. 12-612 (issued November 2, 2012); L.H., Docket No. 12-519 (issued August 20, 2012).

3

Appellant additionally notes that diagnostic studies showed that he had retorn his rotator
cuff. The diagnostic studies, however, were obtained subsequent to Dr. Collis’ examination and
provide no discussion of impairment or relationship to the accepted condition. Further, OWCP
has not accepted a retorn rotator cuff as employment related. As noted, the claimant has the
burden of proving that the condition for which a schedule award is sought is causally related to
his employment.8
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award
for a permanent impairment of the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the March 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Leonard, MI, Employer
__________________________________________

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

Docket No. 19-1800
Issued: September 4, 2020

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 August 27, 2019 appellant, through counsel, filed a timely appeal from a July 1, 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.

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 her burden of proof to establish permanent
impairment of her bilateral lower extremities, warranting a schedule award.
FACTUAL HISTORY
On September 26, 2002 appellant, then a 43-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on September 7, 2002 she sustained two
herniated discs in her lower back when she tripped and fell while in the performance of duty. She
stopped work on September 9, 2002. OWCP accepted appellant’s claim for herniated discs at L45 and L3-4. It paid wage-loss compensation on the supplemental rolls beginning October 24, 2002
and on the periodic rolls effective March 18, 2004.
Appellant resigned from the employing establishment, effective October 10, 2005.
On September 26, 2007 OWCP terminated appellant’s wage-loss compensation and
medical benefits, effective September 26, 2007, because she no longer had residuals or disability
causally related to the September 7, 2002 employment injury. It found that the special weight of
the medical evidence rested with the September 6 and November 21, 2006, and May 2, 2007
reports3 of Dr. Dale Hoekstra, a Board-certified orthopedic surgeon and OWCP impartial medical
examiner, who found that appellant’s accepted September 7, 2002 lumbar injury and disability had
resolved.
Appellant continued to submit medical reports. In an October 21, 2015 electromyograph
and nerve conduction velocity (EMG/NCV) study of the bilateral lower extremities, Dr. Karim
Fram, a Board-certified neurologist, noted mild-to-moderate peripheral demyelinative and axonal
polyneuropathy and chronic bilateral L4 radiculopathy with mild active denervation.
In a November 24, 2017 letter, counsel alleged that appellant had sustained permanent
impairment to a scheduled member and requested a schedule award.
In an October 23, 2017 narrative report, Dr. Catherine Watkins Campbell, Board-certified
in occupational and family medicine, indicated that she had examined appellant on August 24,
2017 and noted her accepted condition of lumbar intravertebral disc disorder with myelopathy.
She reviewed appellant’s medical records and related that the most recent October 21, 2015
EMG/NCV study of the bilateral lower extremities showed abnormal findings. Upon physical
examination, Dr. Watkins Campbell observed that appellant had an antalgic gait and was unable

3

The conflict in medical opinion arose between appellant’s attending physician, Dr. David M. Montgomery, a
Board-certified orthopedic surgeon, and an OWCP second opinion physician, Dr. Paul J. Drouillard, an osteopath
Board-certified in orthopedic surgery. In a September 6, 2006 medical report, Dr. Hoekstra reviewed appellant’s
history of injury and related her current complaints of lower back pain radiating to her bilateral legs. Upon physical
examination, he observed that she was not cooperative with walking on her toes or heels. Dr. Hoekstra noted
subjectively positive tension signs in both lower extremities. He opined that appellant’s accepted disc herniation at
L4-5 had resolved and that her current symptomatology was related to her degenerative disc disease.

2

to stand for Trendelenburg or range of motion testing. She also noted bilateral decreased sensation
to pinprick in appellant’s lower extremities.
Dr. Watkins Campbell indicated that appellant had reached maximum medical
improvement (MMI) as of December 11, 2015. She completed an impairment rating using the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides)4 and noted that the condition was disc disorder at L4- 5. Utilizing
the table for spinal nerve impairment, Dr. Watkins Campbell related that appellant’s EMG/NCV
studies showed L4 and L5 radiculopathies and grade 4/5 strength deficit (mild) for L4 and L5
nerve root bilaterally. She reported a grade modifier for functional history (GMFH) of 2 and a
grade modifier for clinical studies (GMCS) of 4 and indicated that appellant was a grade E.
Dr. Watkins Campbell calculated that appellant had 11 percent permanent impairment at the right
L4 and 11 percent permanent impairment at the right L5 for a total of 21 percent right lower
extremity impairment.5 She also determined that appellant had 11 percent permanent impairment
at the left L4 and 11 percent permanent impairment at the left L5 for a total of 21 percent permanent
impairment of the left lower extremity.6
On January 8, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a January 19, 2018 report, Dr. Michael M. Katz, a Board-certified anesthesiologist
serving as an OWCP district medical adviser (DMA), noted appellant’s accepted condition for
intervertebral disc disorder with myelopathy due to her September 7, 2002 employment injury. He
indicated that he had reviewed Dr. Watkins Campbell’s impairment rating report and noted no
discrepancies. Utilizing the diagnosis-based impairment (DBI) method, Dr. Katz referenced
Proposed Table 2: Spinal Nerve Impairment, Lower Extremity in The Guides Newsletter Rating
Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides
Newsletter) and determined that appellant had 21 percent right lower extremity permanent
impairment and 21 percent left lower extremity permanent impairment. He reported a date of MMI
of August 24, 2017, the date of Dr. Watkins Campbell’s examination.
On June 7, 2018 OWCP referred appellant’s claim, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon,
for a second-opinion examination in order to determine whether she had permanent impairment
due to her September 7, 2002 employment injury. In an August 15, 2018 report, Dr. Obianwu
reviewed appellant’s history of injury, including the SOAF. He noted that he did not have any
medical records or completed studies to review. Upon examination of appellant’s back,
Dr. Obianwu observed no tightness of the muscles and negative straight leg raise testing.
Examination of appellant’s bilateral lower extremities revealed no sensory changes and equal deep
tendon reflexes. Dr. Obianwu related that he found no clinical evidence of radiculopathy in the
lower extremities. He recommended repeat electrodiagnostic studies of both lower extremities
4

A.M.A., Guides (6th ed. 2009)

5

Dr. Watkins Campbell related that motor deficit, grade E, at right L4 and L5 was nine percent and sensory deficit,
grade E, at right L4 and L5 was two percent permanent impairment.
6
Dr. Watkins Campbell related that motor deficit, grade E, at left L4 and L5 was nine percent and sensory deficit,
grade E, at left L4 and L5 was two percent permanent impairment.

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and a magnetic resonance imaging (MRI) scan of the lumbar spine before he provided an
impairment rating.
Appellant underwent diagnostic testing. An October 4, 2018 lumbar spine MRI scan
revealed small, left paracentral disc protrusion at L1-2, small broad-based central disc protrusion
at L4-5, and lumbar spondylosis with facet arthropathy. An October 12, 2018 EMG/NCV study
of the bilateral lower extremities showed a normal electrodiagnostic study.
In an October 29, 2018 addendum report, Dr. Obianwu discussed appellant’s recent lumbar
MRI scan and related that the EMG/NCV study of appellant’s bilateral lower extremities was
normal. He opined that, while appellant may have suffered back problems 16 years ago, the
September 7, 2002 employment injury did not cause any injury in the lumbar spine that would
impair functionality in the lower extremities. Thus, Dr. Obianwu concluded that appellant did not
have any permanent impairment to her lower extremities due to her accepted September 7, 2002
employment injury.
OWCP referred appellant’s claim back to Dr. Katz. In a November 11, 2018 DMA report,
Dr. Katz indicated that he reviewed Dr. Obianwu’s second-opinion report and recent diagnostic
studies. He related that there was a conflict between Dr. Watkins Campbell’s October 23, 2017
impairment rating report and Dr. Obianwu’s second-opinion reports. Dr. Katz requested that
OWCP obtain a referee evaluation from a Board-certified specialist in physical medicine and
rehabilitation.
On November 16, 2018 OWCP requested clarification from Dr. Katz and advised him to
review Dr. Hoekstra’s April 4, 2007, September 6, 2006, and May 2, 2007 referee medical reports,
which found that appellant no longer had residuals or disability causally related to the September 7,
2002 employment injury. It asked that Dr. Katz provide an explanation as to what changed since
Dr. Hoekstra’s finding of no residuals such that appellant now had a permanent impairment related
to the September 7, 2002 employment injury.
In a November 20, 2018 report, Dr. Katz related that the findings of Dr. Hoekstra from
2006 and 2007 supported Dr. Obianwu’s determination that no objective findings of radiculopathy
were present and that neurological examination showed no deficits in the bilateral lower
extremities. He opined that the weight of the medical evidence supported Dr. Obianwu’s secondopinion report that appellant did not have any spinal nerve impairment in the lower extremities
and, accordingly, resolved “the conflict of information” that he had expressed in his November 11,
2018 report. Dr. Katz referenced Proposed Table Two: Spinal Nerve Impairment in The Guides
Newsletter and indicated that appellant was Class 0 with no sensory deficits and no net adjustment.
He concluded that appellant had zero percent permanent impairment of the right and left lower
extremities due to her accepted lumbar injury. Dr. Katz noted a date of MMI of August 15, 2018.
By decision dated December 4, 2018, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
appellant’s lower extremities as a result of her accepted September 7, 2002 employment injury. It
found that the weight of the medical evidence rested with the reports of Dr. Obianwu, OWCP’s
second-opinion examiner, and Dr. Katz, an OWCP DMA, who found that appellant had no
permanent impairment of either lower extremity causally related to the accepted work injury.

4

On December 11, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
April 17, 2019. Counsel asserted that an OWCP DMA could not resolve a conflict and that
appellant’s claim should be referred to an OWCP referee medical examiner in order to resolve the
conflict between Dr. Obianwu and Dr. Watkins Campbell. He also asserted that OWCP’s DMA
should not have relied on the previous referee medical reports as they were stale medical evidence.
By decision dated July 1, 2019, an OWCP hearing representative affirmed the December 4,
2018 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.9 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.10
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.11 Furthermore, the
back is specifically excluded from the definition of organ under FECA.12 The sixth edition of the
A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as
impairments of the extremities. Recognizing that FECA allows ratings for extremities and
precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal nerve
impairments consistent with sixth edition methodology. For peripheral nerve impairments to the
upper or lower extremities resulting from spinal injuries, OWCP’s procedures indicate that the
July/August 2009 edition of The Guides Newsletter is to be applied.13
OWCP’s procedures and Board precedent provide that termination of a claim for all
benefits due to a finding of no residuals of the accepted condition does not bar a subsequent
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404 (a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
11

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).
12

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

13

Supra note 10 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

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schedule award. Rather, the claims examiner should consider the schedule award matter separately
from the termination of benefits.14 This is because a claimant may have an employment-related
condition that results in a permanent impairment under the A.M.A., Guides without a disability for
work or the need for continuing medical treatment.15 If medical evidence establishes that
impairment to the scheduled member exists, the claimant has the burden to prove that the condition
for which a schedule award is sought is causally related to his or her employment.16
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.17 In situations where there exist 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
upon a proper factual background, must be given special weight.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her schedule award claim, appellant submitted an impairment evaluation
report dated October 23, 2017 from Dr. Watkins Campbell, her treating physician, who opined that
appellant had 21 percent right lower extremity and left lower extremity permanent impairment due
to spinal nerve impairment. OWCP subsequently referred appellant’s claim to Dr. Obianwu for a
second-opinion evaluation. In an August 15, 2018 report, Dr. Obianwu conducted an examination
and noted that he found no clinical evidence of radiculopathy in the lower extremities. He
recommended repeat electrodiagnostic testing of the bilateral lower extremities and a lumbar MRI
scan. Following additional diagnostic testing, Dr. Obianwu related in an October 29, 2018
addendum report that the EMG/NCV study of the bilateral lower extremities was normal. He
concluded that appellant did not have any permanent impairment to her lower extremities due to
her accepted September 7, 2002 employment injury.
In a November 11, 2018 report, the DMA noted that there was a “conflict of information”
between Dr. Watkins Campbell’s October 23, 2017 impairment rating report and Dr. Obianwu’s
second-opinion reports. He requested that OWCP obtain a referee impairment evaluation from a
Board-certified specialist in physical medicine and rehabilitation. Instead of referring appellant
for a referee medical opinion, however, OWCP requested that the DMA review the referee medical
14

R.H., Docket No. 17-1017 (issued December 4, 2018); supra note 10 at Chapter 2.808.11 (February 2013).

15

See B.K., 59 ECAB 228 (2007); supra note 10 at Chapter 2.808.11 (February 2013).

16

M.K., Docket No. 16-0243 (issued May 9, 2016).

17

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
18
L.L., Docket No. 19-0214 (issued May 23, 2019); D.M., Docket No. 18-0476 (issued November 26, 2018); R.H.,
59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637, 641 (2002).

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reports of Dr. Hoekstra dated September 6, 2006, and April 4 and May 2, 2007, which OWCP had
previously relied on in terminating appellant’s wage-loss compensation and medical benefits. In
a November 20, 2018 addendum report, the DMA related that Dr. Hoekstra’s medical reports
supported that appellant had no radiculopathy or neurological deficits in her bilateral lower
extremities.
The Board finds that the DMA erred in relying on the 2006 and 2007 reports of
Dr. Hoekstra. It was improper to determine that the conflict of medical opinion regarding
appellant’s permanent impairment was resolved because Dr. Hoekstra’s reports supported
Dr. Obianwu’s October 29, 2018 second-opinion report. The Board notes that Dr. Hoekstra was
asked to resolve the issue of whether appellant still had residuals or disability of her September 7,
2002 employment injury. He did not provide a medical opinion regarding whether appellant
sustained a permanent impairment due to her accepted lumbar injury. As such his reports are
insufficient to resolve the issue of appellant’s permanent impairment rating.19 Last, the DMA
should not have relied on Dr. Hoekstra’s April 4, 2007, September 6, 2006, and May 2, 2007
referee medical reports as his examination findings and medical opinion were stale medical
evidence.20 It was improper for the DMA to have relied on Dr. Hoekstra’s findings from 2006 and
2007 as they were no longer sufficiently current.21 For these reasons, the Board finds that the
DMA’s opinion is of diminished probative value.
The Board finds that a conflict in medical opinion remains between Dr. Watkins Campbell,
appellant’s treating physician, and Dr. Obianwu, OWCP’s second-opinion examiner, regarding
whether appellant has permanent impairment of her lower extremities due to her accepted lumbar
injury. As both physicians properly applied Proposed Table 2 of The Guides Newsletter, but
calculated divergent permanent impairment ratings, the Board finds that there exists a conflict in
the medical opinion evidence requiring referral to an impartial medical examiner pursuant to
5 U.S.C. § 8123(a).22 As noted above, if there is a disagreement between an employee’s physician
and an OWCP referral physician, OWCP will appoint a referee physician or impartial medical
specialist who shall make an examination.23 Therefore, the case must be remanded to OWCP for
referral of appellant to an impartial medical examiner for resolution of the conflict in medical
opinion evidence in accordance with 5 U.S.C. § 8123(a).24 After such further development as
OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
19

See S.T., Docket No. 18-1144 (issued August 9, 2019).

20

See M.L., Docket No. 18-0547 (issued November 7, 2018); T.M., Docket No. 16-0429 (issued August 11, 2016).

21

A.W., Docket No. 14-0199 (issued September 1, 2017).

22

See S.S., Docket No. 19-0766 (issued December 23, 2019); R.S., Docket No. 10-1704 (issued May 13, 2011).

23

Supra note 16.

24

M.M., Docket No. 18-0235 (issued September 10, 2019); S.M., Docket No. 19-0397 (issued August 7, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the July 1, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: September 4, 2020
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bel Air, MD, Employer
__________________________________________

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

Docket No. 16-1135
Issued: September 11, 2017

Case Submitted on the Record

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

JURISDICTION
On May 6, 2016 appellant filed a timely appeal from a November 12, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision dated August 22, 2014 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s August 25, 2015
request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence on appeal. However, the Board cannot consider this
evidence as its review of the case is limited to the evidence of record which was before OWCP at the time of its final
decision. 20. C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

FACTUAL HISTORY
On July 11, 2014 appellant, then a 57-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on December 7, 2013 she suffered a mild concussion when she fell
out of her truck onto a cement ground while loading.
A December 7, 2013 patient visit information form from Harford Memorial Hospital
indicated that patient instructions were provided for muscle strain, concussion, and head injury,
no wake-up (adult).
In a July 11, 2014 statement, an individual, whose signature is illegible, noted that he/she
was informed on December 7, 2013 that appellant fell out of the back of her truck while loading.
In a July 21, 2014 letter, OWCP advised appellant of the deficiencies in her claim and
requested additional factual and medical evidence from a qualified physician supported by a
medical explanation as to how the reported work incident caused or aggravated a medical
condition. Appellant was provided 30 days to submit the requested information. No further
information was received.
By decision dated July 21, 2014, OWCP determined that appellant was not entitled to
continuation of pay during her absence from work for the period December 8, 2013 and
continuing.
By decision dated August 22, 2014, OWCP denied appellant’s claim as there was no
medical evidence containing a medical diagnosis in connection with the established work event
of December 7, 2013.
On August 25, 2015 OWCP received appellant’s August 17, 2015 request for
reconsideration. Appellant described her injury and indicated that only the emergency room visit
was to be considered. She stated that she had submitted all the records given to her from the
hospital to “Kay” on July 29, 2015.
With her reconsideration request, appellant submitted a July 14, 2014 statement from the
employing establishment regarding continuation of pay. Also submitted were a July 28, 2014
authorization for release of health information along with December 7, 2013 notes from the
emergency department of Upper Chesapeake Medical Center and diagnostic testing. Laura
Gaskill, a certified physician assistant, noted the history of the work injury and provided a
clinical impression of head injury, mild concussion, and muscle strain. Appellant was
discharged in good condition. The hospital notes were electronically signed by Dr. Carla Janson,
a Board-certified emergency medical physician.
By decision dated November 12, 2015, OWCP denied appellant’s request for
reconsideration on the basis that it was untimely filed and failed to demonstrate clear evidence of
error.

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.5 OWCP will consider an untimely request for reconsideration only if the request
demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”6
The request must establish on its face that such decision was erroneous.7 Where a request is
untimely and fails to present any clear evidence of error, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.8
ANALYSIS
By decision dated August 22, 2014, OWCP denied appellant’s traumatic injury claim
because she failed to satisfy the medical component of fact of injury. At the time, appellant had
not submitted a physician’s opinion diagnosing a medical condition in connection with the
December 7, 2013 employment incident. On August 25, 2015 OWCP received appellant’s
request for reconsideration. Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the “received date” in iFECS.9 In this instance, the
iFECS record reflects that OWCP received appellant’s August 17, 2015 request for
reconsideration on August 25, 2015, which was more than one year after the last merit decision
of record dated August 22, 2014.10 As appellant’s request was untimely filed, she must
3

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the “received date” in the Integrated Federal Employees’ Compensation System (iFECS). Id. at
Chapter 2.1602.4b.
6

Id. at § 10.607(b).

7

Id. To establish clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it
must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not
enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993).
8

20 C.F.R. § 10.608(b).

9

Supra note 4.

10

J.M., Docket No. 15-1586 (issued March 23, 2016) (the Board explained that according to OWCP procedures,
the received date is determined by the document received date in iFECS).

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demonstrate clear evidence of error on the part of OWCP in its denial of her traumatic injury
claim.11
The Board finds that the arguments and evidence submitted by appellant in support of her
request for reconsideration did not raise a substantial question as to the correctness of OWCP’s
August 22, 2014 decision.
In her request for reconsideration, appellant described the December 7, 2013 employment
incident. The Board notes, however, that the factual occurrence of the December 7, 2013 work
incident is not in dispute. OWCP denied the claim because the medical evidence of record failed
to establish that the December 7, 2013 incident caused an injury.
Appellant submitted a complete hospital record, including diagnostic testing, of her
December 7, 2013 visit. Dr. Janson provided a clinical impression of head injury, mild
concussion, and muscle strain, the hospital documentation was electronically signed by
Dr. Janson.12 This evidence, however, is insufficient to establish that OWCP erred in its denial
of appellant’s claim.13 The Board notes that clear evidence of error is intended to represent a
difficult standard. Evidence, such as a detailed well-rationalized medical report, which if
submitted before the merit denial might require additional development of the claim, is
insufficient to establish clear evidence of error.14 Although the hospital documents submitted are
supportive of appellant’s claim to establish a firm medical diagnosis, they do not establish clear
evidence of error on the part of OWCP as they were submitted after the August 22, 2014 merit
decision.15 Thus, the hospital report and diagnostic testing do not raise a substantial question as
to the correctness of OWCP’s August 22, 2014 merit decision or demonstrate clear evidence of
error.16 OWCP properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant’s August 25, 2015 request for reconsideration was
untimely filed and failed to demonstrate clear evidence of error. Therefore, she is not entitled to
further merit review.
11

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

12

Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists, and social
workers are not considered “physician[s]” as defined under FECA. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
FECA benefits. K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report
from a physician assistant or certified nurse practitioner is considered medical evidence only when countersigned by
a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).
13

See G.B., Docket No. 13-1260 (issued December 2, 2013); see also W.R., Docket No. 09-2336 (issued
June 22, 2010).
14

Federal (FECA) Procedure Manual, supra note 15 at Chapter 2.1602.3(c) (March 2011).

15

G.B., supra note 13.

16

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the November 12, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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