United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melville, NY, Employer
__________________________________________

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

Docket No. 15-288
Issued: May 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 20, 2014 appellant filed a timely appeal from an October 23, 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 met his burden of proof to establish an injury in the
performance of duty on July 16, 2014.
FACTUAL HISTORY
On September 11, 2014 appellant, then a 55-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on July 16, 2014 he sustained a work injury at 4:45 p.m.
Regarding the cause of injury, he stated, “As I was leaving post office to go to my car, I was
1

5 U.S.C. §§ 8101-8193. Appellant submitted additional evidence after OWCP’s October 23, 2014 decision, but
the Board cannot consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

confronted by employee Walter Triquet and he hit me in my face (right eye).” Appellant stopped
work on July 16, 2014. On the same form, his immediate supervisor checked a box indicating
that the claimed injury did not occur in the performance of duty and stated, “[Appellant] was off
the clock and walking to his car in the municipal lot when he was punched by another employee
who was also off the clock.” Appellant’s usual work hours were listed as 7:00 a.m. to 3:50 p.m.
The supervisor noted that the employing establishment was controverting his claim and stated,
“Incident happened off the clock and off of the [employing establishment] premises.”
Appellant submitted medical evidence in support of his claim, including a July 18, 2014
report in which Dr. Michael Demaria, an attending Board-certified gastroenterologist, diagnosed
right eye hematoma, chin laceration, concussion, and headache and indicated that he reported
being punched on July 16, 2014.
In a September 11, 2014 letter, the employing establishment contended that it was
controverting appellant’s claim and stated:
“At the time of the alleged injury/incident, [appellant] was off the clock, not in the
performance of duty, walking to his car in the municipal parking lot, and was off
[employing establishment] premises when he was punched in the eye by another
employee. As per the [Form CA-1] submitted by [him], the alleged injury
occurred at approximately 4:45 p.m. [Appellant] mentioned, as he was leaving
the [employing establishment] to go to his car he was confronted by another
employee, and the other employee hit him in his face (right eye). [Employing
establishment] management has indicated and confirmed that the incident with
[him] was not in the performance of duty, happened off the clock, and off
[employing establishment] premises. [Appellant] was punched by another
employee who was also off the clock.”
In a September 19, 2014 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of his claim. It requested that he complete an
attached questionnaire which included questions about the site of the claimed assault and his
relationship to the claimed assailant. OWCP also sent a September 19, 2014 development letter
to the employing establishment asking for additional information.
In a September 20, 2014 response to OWCP’s request, appellant indicated that on
July 16, 2014 he clocked out of work at approximately 4:40 p.m. and “was leaving postal
property walking towards my car” when he was approached by Mr. Triquet who punched him in
his right eye after stating, “You have a problem with me.” He indicated that the assault occurred
in the parking lot (approximately 15 feet from the employing establishment property) within five
minutes of when he clocked out. The parking lot was not owned, controlled, or managed by the
employing establishment. Appellant indicated that at work on July 9, 2014 Mr. Triquet
threatened him on the workplace floor by stating to him, “What are you looking at?” and “He
thinks he’s a tough guy.” He responded by asking Mr. Triquet whether he was “going to do
anything about it,” but that Mr. Triquet did not do anything further.

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Appellant submitted an employing establishment time record indicating that he
effectuated several clock rings on July 16, 2014, including clock rings at 4:44, 4:50, and 4:59
p.m. The clock ring at 4:59 p.m. contains the notation “nonscheduled end tour.”
A July 16, 2014 report from the Glen Cove Police Department was added to the record
which concerned an incident reported as occurring at 4:44 p.m. on that date. The report noted
that appellant had indicated that Mr. Triquet asked him “if he had a problem with him” and that
Mr. Triquet then punched him in his right eye. Appellant reported that he fell as a result of the
punch and split his chin open on the ground. He was observed with severe facial swelling and a
chin gash. Mr. Triquet was arrested and charged with assault in the third degree. In an undated
witness statement, a coworker indicated that on July 16, 2014 at about 4:40 p.m. in the parking
lot she heard Mr. Triquet state to appellant that he had “a problem” with him and then observed
Mr. Triquet punch appellant in the face. Appellant also submitted additional medical evidence in
support of his claim.
In an October 20, 2014 letter, an employing establishment official stated that appellant
had already clocked out and was in the public parking facility at the time of the claimed injury.
The parking lot was not owned by the employing establishment and was a municipal parking lot.
Employees were not required to utilize the parking lot and no parking spaces were assigned by
the employing establishment. The employing establishment official indicated that it is the
employees’ responsibility to pay for the use of the municipal parking lot.
In an October 23, 2014 decision, OWCP denied appellant’s claim for a July 16, 2014
work injury because he failed to establish that the claimed injury occurred in the performance of
duty. In one portion of the decision, it found that he had established a work incident on July 16,
2014 but did not submit sufficient medical evidence to show that he sustained a medical
condition due to that incident. In another portion of the decision, OWCP found that appellant
had not established a work incident on July 16, 2014. It noted that the claimed injury occurred
off the employing establishment premises while he was off the clock.
LEGAL PRECEDENT
FECA provides for payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.2 The phrase sustained
while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation law, namely, arising out of, and in the course of
employment.3 Arising in the course of employment relates to the elements of time, place, and
work activity. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be stated to be engaged in his or her employer’s business, at a place
where he or she may reasonably be expected to be in connection with his or her employment and
while reasonably fulfilling the duties of his or her employment or engaged in something
incidental thereto. This alone is not sufficient to establish entitlement to compensation. The
employee must also establish the concurrent requirement of an injury arising out of the
2

5 U.S.C. § 8102.

3

See Bernard D. Blum, 1 ECAB 1 (1947).

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employment. Arising out of the employment requires that a factor of employment caused the
injury.4
As a general rule, off-premises injuries sustained by employees having fixed hours and
place of work, while going to or coming home from work, or during a lunch period, are not
compensable as they do not arise out of and in the course of employment, but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.5 When
an employee has a definite place and time for work and the time for work does not include the
lunch period, the trip away from and back to the premises for the purposes of getting lunch is
indistinguishable in principle from the trip at the beginning and end of the workday, and is
governed by the same rules and exceptions.6 Exceptions to the general rule have been made in
order to protect activities that are so closely related to the employment itself as to be incidental
thereto,7 or which are in the nature of necessary personal comfort or ministration.8
The Board has pointed out that factors which determine whether a parking lot used by
employees may be considered a part of the employing establishment’s premises include whether
the employing establishment contracted for the exclusive use by its employees of the parking
area, whether the parking lot was checked for unauthorized vehicles, whether parking spaces on
the lot were assigned by the employing establishment to its employees, whether parking was
provided without cost to the employees, whether the public was permitted to use the lot, and
whether other parking was available to the employees.9 The proximity rule dictates that under
special circumstances the industrial premises are constructively extended to hazardous
conditions, which are proximately located to the premises and may therefore be considered as
hazards of the employing establishment. The main consideration in applying the rule is whether
the conditions giving rise to the injury are causally connected to the employment.10

4

Veleria Minus, 46 ECAB 799 (1995) (the phrase arising out of and in the course of employment encompasses
not only that the injury occurred in the work setting, but also the causal concept that the employment caused the
injury).
5

Mary Keszler, 38 ECAB 735 (1987).

6

Donna K. Schuler, 38 ECAB 273 (1986).

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The Board has stated that these exceptions have developed where the hazards of the travel may fairly be
considered a hazard of the employment and that they are dependent upon the particular facts and related situations:
“(1) where the employment requires the employee to travel on the highways; (2) where the [employing establishment]
contracts to and does furnish transportation to and from work; (3) where the employee is subject to emergency calls as
in the case of firemen; and (4) where the employee uses the highway to do something incidental to his employment,
with the knowledge and approval of the [employing establishment].” Betty R. Rutherford, 40 ECAB 496, 498-99
(1989); Lillie J. Wiley, 6 ECAB 500, 502 (1954).
8

See, e.g., Harris Cohen, 8 ECAB 457, 457-58 (1954) (accident occurred while the employee was obtaining coffee);
Abraham Katz, 6 ECAB 218, 218-19 (1953) (accident occurring while the employee was on the way to the lavatory).
9

Roma A. Mortensen-Kindschi, 57 ECAB 418 (2006); Diane Bensmiller, 48 ECAB 675 (1997).

10

See William L. McKenney, 31 ECAB 861 (1980).

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The Board has held that workplace altercations occur in the performance of duty where
the work brings the two together and creates the conditions that result in the altercation.11
Professor Larson, in addressing assaults arising out of employment, states:
“Assaults arise out of the employment either if the risk of assault is increased
because of the nature or setting of the work or if the reason for the assault was a
quarrel having its origin in the work…. Assaults for private reasons do not arise
out of employment unless, by facilitating an assault which would not otherwise be
made, the employment becomes a contributing factor.”12
With respect to situations where conflicts occur after employees are brought together by
work, OWCP procedures provide:
“Another factor to consider in determining the compensability of injuries
allegedly due to coworker harassment is the “friction and strain doctrine” …
which is followed by the Board. Under this doctrine the fact that employees with
their individual characteristics (emotions, temper, etc.) are brought together in the
workplace creates situations leading to conflicts which may result in physical or
emotional injuries. Because these conflicts have their origin in the employment
they arise out of and in the course of employment even though they have no
relevance to the employee’s tasks. In other words, a conflict between employees
involving a nonwork topic may be found to have occurred in the performance of
duty because the employment brought the employees together and created the
conditions which resulted in the conflict. However, the “friction and strain
doctrine” does not apply to privately motivated quarrels or disputes imported
from outside the employment.”13
The Board has included within the performance of duty a reasonable interval before and
after work to allow for coming and going, as well as personal ministrations, such as lunch or
bathroom breaks, engaged in for the benefit of the employing establishment.14 If the injury does
not take place during those periods or on employing establishment premises, the Board will place
special emphasis on whether the employee was engaged in an activity related to fulfilling the
duties of his employment.15 The Board denied compensation to an employee who tripped on a
loose floorboard after arriving at work 25 minutes early to get coffee and breakfast.16 In
George E. Franks,17 an employee failed to establish an injury in the performance of duty with
respect to a fall in the parking lot of an Army base that occurred 45 minutes prior to the start of
11

F.S., Docket No. 10-1398 (issued May 12, 2011).

12

A. Larson, The Law of Workers’ Compensation § 8.00 (2000).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.12b (March 1994).

14

George E. Franks, 52 ECAB 474 (2001).

15

See Venicee Howell, 48 ECAB 414 (1997); Narbik A. Karamian, 40 ECAB 617 (1989).

16

T.F., Docket No. 09-154 (issued July 16, 2009).

17

52 ECAB 474 (2001).

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his shift. The Board found that the action he was performing at the time, getting coffee and
breakfast, was solely personal in nature. In John F. Castro,18 the Board granted recovery when
an employee was injured in an automobile accident at a naval station five minutes after the end
of his shift.19
ANALYSIS
On September 11, 2014 appellant filed a traumatic injury claim alleging that on July 16,
2014 he sustained a work injury at 4:50 p.m. Regarding the cause of injury, he stated, “As I was
leaving post office to go to my car, I was confronted by employee [Mr. Triquet] and he hit me in
my face (right eye).” In an additional statement, appellant indicated that the claimed injury
occurred approximately five minutes after he clocked out for the day while he was walking to his
car in a municipal parking lot about 15 feet from the employing establishment premises. He
stated that Mr. Triquet punched him in his right eye after stating, “You have a problem with me.”
The employing establishment controverted the claim and, in an October 23, 2014 decision,
OWCP denied appellant’s claim, in part, because he did not show that the claimed injury
occurred in the performance of duty.20
The Board finds that appellant has failed to establish that an employment incident
occurred on July 16, 2014. Although the record is vague regarding the precise times that
appellant clocked out of work and the assault by Mr. Triquet occurred on July 16, 2014, it
appears that the assault occurred within a few minutes of appellant clocking out of work on that
date. Appellant indicated that the incident occurred at approximately 4:50 p.m. on July 16, 2014
and the record contains a document suggesting that he clocked out around that time on
July 16, 2014.21 The Board notes that it appears that the claimed work incident occurred within a
reasonable interval after clocking out from work and would not be denied solely on a temporal
basis.22 However, in examining whether the July 16, 2014 incident occurred within the
performance of duty, it is important to also examine whether it occurred at a place where
appellant may reasonably be expected to be in connection with his employment and while
reasonably fulfilling the duties of his employment or engaged in something incidental thereto.23

18

Docket No. 03-1653 (issued May 14, 2004).

19

Id.

20

In its decision OWCP was vague regarding the reason for denying appellant’s claim. In one portion of the
decision, it found that he had established a work incident on July 16, 2014 but did not submit sufficient medical
evidence to show that he sustained a medical condition due to that incident. In another portion of the decision,
OWCP found that appellant had not established a work incident on July 16, 2014 as it was off premises and off the
clock.
21

Appellant submitted an employing establishment time record indicating that he effectuated several clock rings
on July 16, 2014, including clock rings at 4:44, 4:50, and 4:59 p.m. The clock ring at 4:59 p.m. contains the
notation “nonscheduled end tour.”
22

See supra notes 14 through 19.

23

See supra note 4.

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First, the Board notes that the claimed work incident occurred off the premises of the
employing establishment. The assault occurred on a municipal parking lot that was not owned,
controlled, or managed by the employing establishment. Moreover, the employing establishment
did not provide parking spaces for its employees in this lot or pay for parking in the lot. There is
no evidence that the municipal parking lot where the claimed injury occurred was part of the
employing establishment premises or that the premises extended to the parking lot under the
proximity rule.24 Second, it does not appear that appellant was reasonably fulfilling the duties of
his employment or engaged in something incidental thereto at the time of the claimed injury on
July 16, 2014. He was merely leaving work after clocking out for the day and walking to his car.
Appellant suggested that the assault occurred due to an ongoing dispute with his
coworker, Mr. Triquet. He indicated that, at work on July 9, 2014, i.e., a week prior to the
claimed July 16, 2014 injury, Mr. Triquet threatened him on the workplace floor by stating to
him, “What are you looking at?” and “He thinks he’s a tough guy.” Although the Board has held
that workplace altercations occur in the performance of duty where the work brings the two
together and creates the conditions that result in the altercation, the facts of the present case are
not sufficiently similar to those cases where coverage is found under this principle.25
In the cases where coverage is found, based on the employment bringing two employees
together and creating the conditions that resulted in the altercation, the two employees engaged
in the altercation are typically located on the premises and engaged in performing work duties
around the time of the altercation. For example, in C.O.,26 coverage was found where the
assailant approached the claimant while he or she was working on the premises and assaulted
him or her after questioning the actions of the claimant’s pastor. In Shirley I. Griffin,27 a work
incident was found where the assailant approached the claimant while she was working on the
premises and assaulted her ostensibly due to her failure to introduce the assailant to a male
employee. In these cases, it was reasoned that coverage was warranted, even though the
conflicts were not strictly over work matters, because the employment brought the two
employees together, and created the conditions that resulted in the altercations.
The facts of the present case differ significantly in that appellant was not on the premises
of the employing establishment when he was assaulted. Nor was he engaged in any work duties
or actions incidental thereof at the time of the assault. Appellant’s situation does not fall under
the exceptions to the general rule that off-premises injuries sustained by employees having fixed
hours and place of work, while going to or coming home from work or during a lunch period, are

24

See supra notes 9 and 10.

25

See supra note 11. The Board notes that the nature of the conflict between appellant and his assailant remains
vague and that there is no evidence that the conflict was imported into the workplace from their private lives. See
supra note 13.
26

Docket No. 09-217 (issued October 21, 2009).

27

43 ECAB 573 (1992).

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not compensable as they do not arise out of and in the course of employment but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.28
The facts of appellant’s case are more similar to the case of S.C.,29 a case where coverage
was not found because the claimed injury did not occur at a place where the claimant was
reasonably expected to be in connection with his employment and did not occur while reasonably
fulfilling the duties of his employment or engaged in something incidental thereto. In that case,
the claimant and the assailant had a tense conversation at work approximately one week prior to
the assault. However, the assault occurred while the claimant was off the premises of the
employing establishment and while he was not on official time. For these reasons, appellant has
not established the occurrence of a work incident on July 16, 2014.
Because appellant has not established the occurrence of a work incident on July 16, 2014,
he has not established that he sustained an injury in the performance of duty on July 16, 2014.30
He 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 10.607.31
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on July 16, 2014.

28

See supra notes 5 through 8.

29

Docket No. 13-1915 (September 16, 2014).

30

See supra notes 2 through 4.

31

The Board notes that the record contains a Form CA-16 completed on appellant’s behalf. Where an employing
establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an employee’s
claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim.
See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a CA-16 form is
limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c). The
record is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for the period noted on
the form.

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ORDER
IT IS HEREBY ORDERED THAT the October 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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Appearances:
Moses Luna, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-467
Issued: August 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 29, 2011 appellant, through her representative, filed a timely appeal from
the Office of Workers’ Compensation Programs’ (OWCP) July 29 and December 5, 2011 merit
decisions reducing her compensation and schedule award benefits for failure to participate in
vocational rehabilitation. 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 OWCP properly reduced appellant’s compensation to zero pursuant
to 5 U.S.C. § 8113(b) based on her failure to cooperate with vocational rehabilitation.
FACTUAL HISTORY
On February 26, 2002 appellant, a 44-year-old mail carrier, filed an occupational disease
claim alleging that she sustained a right wrist injury due to her federal employment activities.
1

5 U.S.C. § 8101 et seq.

OWCP accepted her claim for right wrist tendinitis and de Quervain’s disease, right wrist sprain
and strain and right carpal tunnel syndrome (CTS). OWCP paid appellant compensation for lost
wages.
Appellant returned to work on September 30, 2006 as a modified mail handler. She
continued to work in modified assignments pursuant to restrictions provided by her treating
physician, Dr. Max H. Matos, a Board-certified orthopedic surgeon. On February 23, 2010
Dr. Matos noted an increase in appellant’s right upper extremity symptoms, including limited
range of motion and decreased sensation in her right wrist. On April 1, 2010 he increased her
work restrictions to include no repetitive use of the right upper extremity, no pulling or pushing
greater than 10 pounds and no filing.
In a letter dated April 5, 2010, the employing establishment informed appellant that it
was unable to identify enough available necessary tasks within her medical restrictions to
complete a full day’s work. Appellant requested, and OWCP began paying, compensation for
wage loss effective April 5, 2010.
On October 25, 2010 OWCP referred appellant to a rehabilitation counselor for
vocational rehabilitation services. It informed the rehabilitation counselor that a functional
capacity evaluation was necessary in order to determine her work capacity. In a letter dated
November 19, 2010, OWCP informed appellant that she was expected to cooperate fully with her
rehabilitation counselor in an effort to return to work.
On December 8, 2010 the rehabilitation counselor notified appellant that a functional
capacity evaluation had been scheduled for December 22, 2010 at 2:00 p.m. In a letter dated
December 10, 2010, appellant’s representative informed OWCP that she did not believe that she
was capable of completing a functional capacity evaluation because she had not been released
from her physician’s care. He requested that the study be postponed until she was able to discuss
the advisability of the proposed evaluation with her doctor on January 14, 2011, the date of her
next scheduled examination.
Appellant attended the scheduled functional capacity examination on December 22, 2010.
In a December 22, 2010 report, Lisa Fitzpatrick, an occupational therapist, stated that appellant
provided inconsistent responses, was combative and was verbally abusive to her during the
evaluation. Appellant refused to complete the examination due to pain, stating that her doctor
stated that she did not have to undergo the examination. Ms. Fitzpatrick stated that, since the test
could not be completed, she was unable to ascertain appellant’s true work capacity.
In a letter dated January 6, 2011, an OWCP claims examiner noted appellant’s failure to
cooperate during the functional capacity evaluation and, therefore to fully cooperate with
vocational rehabilitation efforts. OWCP informed appellant that her request to postpone the
evaluation was denied and that another date would be selected for the evaluation and informed
her that her failure to cooperate could be cause to suspend her compensation benefits.
In a letter dated January 19, 2011, OWCP notified appellant that her failure to cooperate
with, and fully participate in, the December 22, 2010 functional capacity evaluation constituted
refusal to undergo vocational rehabilitation. It notified her that 5 U.S.C. § 8113(b) provided that,

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if an individual without good cause fails to apply for and undergo vocational rehabilitation when
so directed, and it finds that, in the absence of the failure the individual’s wage-earning capacity
would probably have substantially increased, it may reduce prospectively the compensation
based on what probably would have been the individual’s wage-earning capacity had she not
failed to apply for and undergo vocational rehabilitation. Appellant was informed that, within 30
days, another functional capacity evaluation would be scheduled; that she was directed to fully
participate in the evaluation; and that if she believed she had a good reason for not participating,
she should so advise OWCP within 30 days, with reasons for noncompliance and any supporting
evidence. OWCP advised her that, after any evidence submitted was evaluated, further action
would be taken, without additional notice to her. If appellant did not comply with the
instructions contained within the letter within 30 days, the rehabilitation effort would be
terminated and her compensation reduced in accordance with 5 U.S.C. § 8113(b) and 20 C.F.R.
§ 10.519.
On February 18, 2011 the rehabilitation counselor notified appellant that a functional
capacity evaluation had been scheduled for February 28, 2011 at 9:00 a.m. In a March 9, 2011
report, L. Michelle Smith, a physical therapist, stated that she was unable to accurately assess
appellant’s work capacity due to inconsistencies in her test responses. Appellant demonstrated
severely limited range of motion with the goniometer with functional activities; however, she
was observed moving her right arm into 85 to 90 degrees of shoulder flexion while applying
analgesic cream. With pronation/supination, she demonstrated functional range of motion during
gross range of motion assessment and during the manual muscle testing; however, when
attempting to obtain a measurement with the goniometer, she was only able to perform 20 to 30
percent of full motion. Appellant demonstrated very low full hand grip strength on the right, but
demonstrated pinch strength on the right slightly less than (less than 1 percent) her maximum
grip strength. This was atypical, as pinch strength generally 30 to 35 percent weaker than the
full maximum grip. Additionally, the five-rung grip test was not consistent. Appellant was able
to hold the dynamometer in the right hand without support, but reported that she was unable to
hold the force meter (similar in weight to the dynamometer) in the right hand alone for lift
strength testing. With dexterity testing, she demonstrated functional range of motion in the
forearm and wrist; however, when asked to perform a typing activity, she did not perform normal
palm down typing position and pushed the keys with hunt and peck with index and middle
finger. The evaluator concluded that due to these inconsistencies, she was unable to determine
her capacity.
In a March 11, 2011 decision, OWCP reduced appellant’s compensation to zero finding
that she had, without good cause, failed to undergo vocational rehabilitation when so directed
under 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519.
On April 5, 2011 appellant, through her representative, requested a review of the written
record. Counsel contended that appellant had complied with OWCP’s request to attend the work
capacity evaluation and made a good faith effort to perform the requested activities to the best of
her ability. He stated that the evaluator refused to postpone the evaluation until appellant’s
physician had an opportunity to examine her. Counsel argued that appellant’s compensation
benefits were improperly terminated because she did not refuse to undergo vocational
rehabilitation.

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The record contains a December 10, 2010 report of a functional capacity evaluation
performed by a Ronald Kelly, at the request of Dr. Matos. After performing function, pinch
strength and static strength testing, Mr. Kelly opined that appellant could push and pull up to
eight pounds occasionally up to 30 percent of the workday. She should not pinch, grasp or turn
and pick up very small objects with her right hand, reach above the waist level with her right arm
or lift or carry.
In a December 20, 2010 report, Dr. Matos stated that appellant was extremely sensitive to
evaluation of her right upper extremity with range of motion, sensory or strength testing. He
opined that the results of the testing performed pursuant to the December 10, 2010 functional
capacity evaluation were reliable and valid. Dr. Matos stated that appellant should not be asked
to repeat the functional capacity evaluation at that time but, should her pain reduce, it might be
repeated.
On January 6, 2011 Dr. Matos provided a 33 percent whole person impairment rating.
Examination revealed reduced cervical range of motion due to pain; tenderness over the right
wrist and forearm and lateral aspect of the elbow; pain on wrist flexion and extension. Dr. Matos
diagnosed arm pain and indicated that his examination was limited due to appellant’s discomfort.
He opined that appellant could work with restriction, including no lifting, pushing or pulling
more than 10 pounds; limited use of the right upper extremity; and no repetitive grasping or
gripping with the right upper extremity.
In a report dated January 14, 2011, Dr. Matos provided a review of the medical record
and examination findings. He diagnosed right wrist residual CTS and de Quervain’s
tenosynovitis; right thumb carpometacarpal sprain/strain; right upper extremity hypersensitivity;
status post right first dorsal compartment release and post right carpal tunnel release; right
middle finger pulley release; borderline right carpal tunnel syndrome and mild right ulnar
neuropathy at the elbow; mild effusion of the right lateral radiocarpal joint; and major depressive
disorder and sleep disorder due to chronic pain. Dr. Matos opined that appellant had a 57
percent right upper extremity impairment. Regarding appellant’s functional capacity, he noted
that appellant was “forced to stop a functional capacity examination on February 13, 2010 as it
was significantly exacerbating her pain.”
Appellant underwent a functional capacity
examination on December 10, 2010, which resulted in the following work restrictions: no
reaching above the waist level with the right arm; no grasping or turning with the right hand; no
picking up very small objects with the right hand; no pinching with the right hand; and no lifting
or carrying.
In a June 10, 2011 letter to Vice President Biden, appellant contended that she had both
appeared for and fully cooperated with the evaluator in the two required functional capacity
evaluations. In a letter dated June 22, 2011, OWCP informed appellant that her compensation
benefits had been reduced because she had failed to show good cause for failing to fully
participate in the functional capacity evaluations and had failed to express a willingness to do so.
By decision dated July 29, 2011, an OWCP hearing representative affirmed the
March 11, 2011 decision, finding that she had refused to cooperate in the preliminary stages of
vocational rehabilitation.

4

On August 29, 2011 appellant requested reconsideration, contending that she had made a
good faith effort to participate in the vocational rehabilitation process and had complied with
OWCP’s requests. In a July 22, 2011 report, Dr. Matos noted her continued complaints of pain.
Appellant also submitted copies of medical reports and other documents previously reviewed by
OWCP, as well as prescriptions for various medications and fiscal statements.
By decision dated December 5, 2011, OWCP denied modification of the July 29, 2011
decision. The claims examiner found that appellant had not fully participated in the required
functional capacity evaluation or presented rationalized medical evidence establishing that she
was unable to do so.
LEGAL PRECEDENT
Section 8113(b) of FECA provides:
“If an individual without good cause fails to apply for or undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”2
20 C.F.R. § 10.519 provides in pertinent part:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in, or continue to participate in a vocational rehabilitation effort when
so directed, [OWCP] will act as follows:”
***
“(b) Where a suitable job has not been identified, because the failure or refusal
occurred in the early but necessary stages of a vocational rehabilitation effort (that
is, meetings with [OWCP] nurse, interviews, testing, counseling, functional
capacity evaluations, and work evaluations) [OWCP] cannot determine what
would have been the employee’s wage-earning capacity.
“(c) Under the circumstances identified in paragraph (b) of this section, in the
absence of evidence to the contrary, [OWCP] will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity, and [OWCP] will reduce the employee’s monetary
compensation accordingly (that is, to zero). This reduction will remain in effect

2

Id. at § 8113(b). See J.E., 59 ECAB 606 (2008).

5

until such time as the employee acts in good faith to comply with the direction of
[OWCP].”3
OWCP’s procedure manual states that specific instances of noncooperation include a
failure to appear for the initial interview, counseling sessions, a functional capacity evaluation,
other interviews conducted by the rehabilitation counselor, vocational testing sessions, and work
evaluations, as well as lack of response or inappropriate response to directions in a testing
session after several attempts at instruction.4
ANALYSIS
The Board finds that OWCP properly reduced appellant’s compensation benefits to zero
based on her failure to cooperate with vocational rehabilitation.
Appellant received wage-loss benefits because the employing establishment was unable
to provide necessary tasks within her medical restrictions to complete a full day’s work. OWCP
properly referred her to vocational rehabilitation to develop a vocational plan to assist her in
returning to gainful employment within her medical limitations. As an initial step in the process,
appellant was directed to attend and fully participate in a functional capacity evaluation on
December 22, 2010. Although she attended the examination, the evaluator’s report reflects that
she provided inconsistent responses, was combative and verbally abusive during the evaluation
and refused to complete the examination due to pain, contending that her doctor stated she did
not have to undergo the examination. As the test could not be completed, the evaluator was
unable to ascertain appellant’s work capacity.
Appellant was notified that her failure to cooperate without good cause was reason to
reduce her compensation benefits. She was directed to attend and fully participate in a functional
capacity evaluation scheduled on February 28, 2011. The record reflects that appellant again
attended the evaluation, but failed to fully cooperate. The evaluator stated that she was unable to
accurately assess appellant’s work capacity due to gross inconsistencies in appellant’s test
responses, which she delineated in detail.
OWCP procedures recognize that specific instances of noncooperation include a failure
to appear for a functional capacity evaluation, as well as lack of response or inappropriate
response to directions in a testing session after several attempts at instruction.5 The Board finds
that appellant’s refusal to participate in the December 22, 2010 evaluation and her inappropriate
and inconsistent responses to the February 28, 2011 evaluation constitute noncooperation with
the initial stages of vocational rehabilitation.
The Board finds that appellant failed to show good cause for her failure to fully
participate. Appellant first contended that she was physically unable to complete a functional
3

20 C.F.R. § 10.519 (2011).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(a) (November 1996); see Sam S. Wright, 56 ECAB 358 (2005).
5

Id.

6

capacity evaluation. She did not, however, submit medical evidence to establish good cause for
her failure to complete the evaluation. In a December 20, 2010 report, Dr. Matos stated that
appellant was extremely sensitive to evaluation of her right upper extremity with range of
motion, sensory or strength testing and opined that appellant should not be asked to repeat the
functional capacity evaluation at that time, but that should her pain reduce, it might be repeated.
He did not adequately explain why she was not able to undergo the required evaluation.
Dr. Matos did not address the December 10, 2010 report of Mr. Kelly or contrast the findings he
made with those of Ms. Smith. Therefore, his opinion is of limited probative value. The Board
notes that the purpose of a functional capacity evaluation is to determine a claimant’s physical
capacity, not to exceed that capacity. The remaining medical evidence of record does not
contain an opinion regarding appellant’s ability to participate in the functional capacity
evaluation.
Appellant argued that she did not refuse to undergo vocational rehabilitation and that she
made a good faith effort to perform the requested activities to the best of her ability, short of
causing injury to herself and at a pain level that she could tolerate. The evidence of record does
not establish that she cooperated to the best of her ability. Ms. Fitzpatrick noted inconsistent
responses, that appellant became combative and verbally abusive and refused to complete the
first examination. In the second examination, Ms. Smith was unable to accurately assess
appellant’s work capacity due to inconsistencies in her test responses. The Board finds that
appellant’s failure to participate in vocational rehabilitation was without good cause.
In this case, the failure to participate was clearly in the early but necessary stage of
vocational rehabilitation, prior to the identification of a suitable job. Under this circumstance
OWCP will assume, in the absence of contrary evidence that the rehabilitation effort would have
resulted in a return to work with no loss of wage-earning capacity. Pursuant to 20 C.F.R.
§ 10.519, OWCP will reduce compensation to zero until such time as appellant in good faith
complies with its direction. The Board finds OWCP properly applied the provisions of FECA
and the implementing regulations in reducing appellant’s compensation to zero.
On appeal, appellant contends that the evidence is sufficient to show good cause for her
inconsistent responses during the functional capacity evaluation. For reasons stated, the Board
finds that appellant’s failure to fully participate in vocational rehabilitation was without good
cause.
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 OWCP properly reduced appellant’s compensation to zero pursuant
to 5 U.S.C. § 8113(b) and 20 C.F.R. § 10.519.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 5 and July 29, 2011 are affirmed.
Issued: August 8, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF THE ARMY, CAMP
ARIFJAN, Kuwait, AE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-16
Issued: October 1, 2010

Case Submitted on the Record

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

JURISDICTION
On September 30, 2009 appellant filed a timely appeal from April 20 and June 26, 2009
merit decisions of the Office of Workers’ Compensation Programs denying her traumatic injury
and occupational disease claims. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a condition due to exposure to toxic
fumes as a result of factors of her federal employment; (2) whether she has a cervical condition
causally related to work factors; (3) whether appellant sustained a stress-related condition in the
performance of duty; (4) whether she was injured on November 22, 2006 in the performance of
duty; and (5) whether appellant sustained an injury on June 19, 2008 in the performance of duty.
FACTUAL HISTORY
On February 9, 2009 appellant, then a 52-year-old budget analyst, filed an occupational
disease claim alleging that she experienced compression of the cervical spine at C3-4, multiple

thoracic and lumbar disc protrusions, an injury to the femur of the left leg and numbness of the
hands and feet due to factors of her federal employment. She related that she worked 12 hours a
day not including overtime from October 2006 to November 2008. Appellant indicated that she
“lived off post in Kuwait and came in contact with toxic fumes from the oil plumes daily….”
On February 17, 2009 the Office requested additional factual and medical information
from appellant. It reviewed her statement and noted that she claimed both physical conditions
due to injuries on November 22, 2006 and June 19, 2008 and a psychological condition due to
work factors. The Office asked that she clarify whether she was claiming a psychological,
physical or pulmonary condition.
In a statement received February 18, 2009, appellant related that in November 2006 she
lived on the premises of the employing establishment. She took bus transportation to work. At
8:00 a.m. on November 22, 2006 appellant lost her balance on the bus and fell forward onto the
steps, bruising her left leg. She sought treatment the next day. Appellant moved off the
premises of the employing establishment on December 9, 2006. In December 2006, she noticed
a rash on her left leg. The clinic at the employing establishment diagnosed a staph infection due
to appellant November 2006 injury. In August 2007, appellant became stressed and tired from
working 13 to 14 hours a day 6 days a week. She requested leave to rest but it was denied.
Appellant experienced high blood pressure. On June 19, 2008 she was riding in a private taxicab
from her apartment in Kuwait to pick up her nontactical vehicle that was being repaired.
Appellant stated:
“This was part of my duties to maintain my assigned vehicle. I was the passenger
in the front seat of a local civilian taxi when the driver was not looking and he
struck a parked white commercial truck that was stopped halfway out in the
road…. The traffic accident occurred on my passenger side and I received most
of the major impact from the right front bumper to the right crease of the
passenger door.”
After the accident appellant’s left side was numb from her hip to her left foot. She
obtained treatment at the emergency room. Over the next several months appellant experienced
numbness and tingling in her hands and feet. On December 1, 2008 a magnetic resonance
imaging (MRI) scan study showed severe compression of the spine at C3-4. Appellant was
medically evacuated to Germany for surgery.
On November 23, 2006 Martha Feenaghty diagnosed a contusion of the lower leg after a
fall from a vehicle. She noted that appellant described the injury as occurring when she fell
forward on a bus and hit her left leg.
On January 28, 2007 a health care provider at the employing establishment’s clinic,
Karen Phelps, evaluated appellant for a skin rash seven days after trauma to her left lower
extremity. She diagnosed cellulitis and folliculitis.
On June 19, 2008 appellant received treatment at the employing establishment clinic
following a motor vehicle accident. She related that she was a passenger in a taxicab that struck
another motor vehicle. Appellant complained of a bruised feeling on the right side of her body

2

“and some numbness in her right foot.” The health care provider diagnosed a contusion of the
shoulder, upper arm and thigh with intact skin surface.
On December 10, 2008 Dr. Cynthia B. Piccirilli, a Board-certified neurosurgeon,
discussed appellant’s history of a June 2008 motor vehicle accident with “left-sided numbness
that lasted one day and then resolved.” Appellant experienced numbness of her hands and feet in
September 2008 and in October 2008 her neck began to “lock up.” Dr. Piccirilli diagnosed
possible cervical cord compression. She noted that an MRI scan study of the cervical spine
showed severe degenerative disc disease at C3-4 with stenosis and cord changes and
recommended surgery.
On December 29, 2008 appellant received treatment from a physician’s assistant at the
employing establishment’s clinic subsequent to a fusion on December 11, 2008 of her C3-4
cervical disc.1 In a clinic note dated February 1, 2009, a health care provider for the employing
establishment evaluated her for low back pain. He indicated that appellant’s symptoms began
after a June 2008 motor vehicle accident.
On February 13, 2009 the employing establishment advised the Office to “please be
aware that the incident which occurred June 19, 2008 was on a scheduled day off for
[appellant].”
In an undated form report, Dr. Amiel Bethel, a Board-certified neurosurgeon, diagnosed
cervical and lumbar degenerative disc disease and cervical spondylosis. She provided the history
of injury as appellant experiencing an injury while on a bus in Kuwait in November 2006 and a
motor vehicle accident in June 2008 and having cervical and lumbar degenerative disc disease.
Dr. Bethel checked “yes” that the condition was caused or aggravated by employment.
By decision dated April 20, 2009, the Office denied appellant’s claim for an injury due to
factors of her federal employment. It found that there was insufficient evidence to show that her
work duties caused a diagnosed condition and noted that it could not determine what she was
claiming as she had mentioned various conditions and dates. The Office advised appellant that it
was not sure whether she was claiming a physical, psychological or pulmonary condition. It
found that she had not submitted the factual information necessary for the Office to identify what
she was claiming and thus had not established an injury as a result of factors of her federal
employment.
By letter dated April 14, 2009, appellant related that she was claiming both an injury on
November 2006 when she fell on a bus going to her duty station and a motor vehicle accident in
June 2008 traveling to a military installation to pick up her assigned vehicle. She underwent a
cervical fusion at C3-4 but continued to have numbness, tingling and pain. Appellant stated, “I
worked over 60 hours a week and the increased range of motion of my neck sitting at my
computer and similarly muscle forces applied, in my case the symptoms that I had nerve root

1

The physician’s assistant noted, “In June 2008, [appellant] was involved in a motor vehicle accident and
developed left-sided numbness that lasted one day then resolved. Since August/September 2008 she developed
numbness in her hands and feet, which were intermittent and unpredictable, generally lasting 15[to] 30 minutes.”

3

compression and spinal cord damage.” She asserted that working conditions placed her at
“increased risk” of development of degenerative disc disease.
On April 28, 2009 appellant requested a review of the written record. In a report dated
April 20, 2009, Dr. Stephen G. Smaldore, an osteopath who is Board-certified in family practice,
related that appellant was “currently suffering from multiple musculoskeletal complaints which
have resulted from [the] accident which occurred while she was stationed in the Middle East …
one in November 2006 and another in June 2008. These eventually led to an anterior cervical
discectomy and fusion.” Dr. Smaldore noted that she did not have pain in her neck or back prior
to the above incidents.
By letter dated April 29, 2009, appellant related that she was claiming two traumatic
injuries that occurred on November 22, 2006 and June 19, 2008. She noted that her spinal cord
condition due to the injuries was not found until she had an MRI scan study on
December 1, 2008. Appellant asserted that the clinic records established that she sustained
injuries in a combat zone and that she was an emergency essential personal with on-call and
irregular work hours.2
By decision dated June 26, 2009, the hearing representative affirmed the April 20, 2009
decision as modified to reflect his findings. He considered each condition alleged on the claim
form and in her statements. The hearing representative determined that she had not established
exposure to toxic fumes in Kuwait and had not provided a detailed statement in support of her
allegations that she sustained stress and hypertension due to work factors or any supporting
medical evidence. He further found that there was no medical evidence attributing a cervical
condition to working at a computer. Regarding appellant’s traumatic injury claims, the hearing
representative concluded that her fall on a bus on November 22, 2006 was not compensable
because she was injured off the premises. He also found that she was not in the performance of
duty at the time of her June 19, 2008 motor vehicle accident as there was no evidence that she
was engaged in a special errand at the time for her employer. The hearing representative advised
that even if the June 19, 2008 motor vehicle accident occurred in the performance of duty, the
medical evidence was insufficient to show that she sustained a cervical condition as a result of
the accident.
On appeal, appellant argues that she provided a letter from her senior rater stating that she
was an emergency personnel worker available 24 hours a day and that part of her duty was to
maintain her vehicle.
LEGAL PRECEDENT -- ISSUES 1 & 2
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
2

Appellant submitted a functional capacity evaluation dated April 30, 2009.

3

5 U.S.C. §§ 8101-8193.

4

performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;6 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;7 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.8
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.9 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,10 must be one of reasonable medical certainty11 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.12
ANALYSIS -- ISSUES 1 & 2
On her claim form, appellant related that she was exposed to toxic fumes from oil wells
while living in Kuwait. She did not, however, as requested by the Office, identify any condition
resulting from toxic fume exposure or submit any medical evidence attributing a diagnosed
condition to exposure to toxic fumes. Consequently, appellant has not met her burden of proof to

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

5

establish an essential element of her claim as she has not submitted a factual statement alleging a
condition claimed due to exposure to toxic fumes.13
Appellant further attributed her cervical condition to working on a computer. The Office
accepted the occurrence of the identified work factor. The issue, therefore, is whether the
medical evidence establishes a causal relationship between the claimed conditions and the
identified employment factors.
Appellant submitted clinic notes describing her treatment at the employing
establishment’s health clinic from 2006 to 2009. None of the health care providers, however,
found that she had a cervical condition as a result of working on a computer. In a report dated
December 10, 2008, Dr. Piccirilli diagnosed possible cervical cord compression. She discussed
appellant’s history of a motor vehicle accident in June 2008 with subsequent numbness in the
hands and feet. In an undated form report, Dr. Bethel diagnosed cervical and lumbar
degenerative disc disease and cervical spondylosis. She listed the history of injury as a bus
accident in November 2006 and a motor vehicle accident in June 2008 and also cervical and
lumbar degenerative disc disease. Dr. Betel checked “yes” that the diagnosed conditions were
due to employment. As there is no medical evidence from a physician supporting that appellant
sustained a cervical condition due to the identified work factor of working on a computer, she
has not met her burden of proof.14
LEGAL PRECEDENT -- ISSUE 3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;15 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;16 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.17
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
13

See A.D., 58 ECAB 149 (2006) (a claimant’s burden of proof in an occupational disease claim includes the
submission of a factual statement identifying the employment factors alleged to have caused or contributed to the
disease or condition claimed).
14

Appellant has the burden of establishing by the weight of the reliable, probative and substantial evidence that
his or her condition was caused or adversely affected by the employment. As part of this burden, the claimant must
present rationalized medical opinion evidence, based on a complete factual and medical background, showing causal
relationship. See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).
15

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

16

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

17

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

6

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 regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.18 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.19
ANALYSIS -- ISSUE 3
Appellant alleged that she experienced stress due to working long hours and the
employing establishment denying her request for leave. She did not, however, provide any
further detail regarding her allegations. It is appellant’s burden to submit a detailed description
of the employment factors or conditions that he or she believes caused or adversely affected the
condition or conditions for which compensation is claimed.20 Additionally, there is no medical
evidence of record diagnosing either an emotional condition or a stress-related condition. As
part of her burden of proof, appellant must submit a well-reasoned medical opinion from a
qualified physician explaining how her exposure to a compensable work factor caused or
aggravated a diagnosed emotional or physical injury.21 As she has submitted no competent
medical opinion to support one of the essential elements of her claim for an emotional condition
or stress-related hypertension, she has not met her burden of proof.
LEGAL PRECEDENT -- ISSUE 4
The Act provides for the payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.22 The phrase
sustained while in the performance of duty is regarded as the equivalent of the coverage formula
commonly found in workers’ compensation laws, namely, arising out of and in the course of
employment.23 In the course of employment relates to the elements of time, place and work
activity.24 To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in her master’s business, at a place when she
may reasonably be expected to be in connection with her employment and while she was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto. As to the phrase in the course of employment, the Board has accepted the general rule of
18

5 U.S.C. § 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

19

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

20

David Apgar, 57 ECAB 137 (2006); Penelope C. Owens, 54 ECAB 684 (2003).

21

See L.D., 58 ECAB 344 (2007); Beverly R. Jones, 55 ECAB 411 (2004).

22

5 U.S.C. § 8102(a).

23

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
24

D.L., 58 ECAB 667 (2007).

7

workers’ compensation law that, as to employees having fixed hours and places of work, injuries
occurring on the premises of the employing establishment, while the employees are going to and
from work, before or after work hours or at lunch time, are compensable.25 The Board has
stated, as a general rule, that off-premises injuries sustained by employees having fixed hours
and places of work, while going to or coming from work, are not compensable as they do not
arise out of and in the course of employment, but are merely the ordinary, nonemployment
hazards of the journey itself, which are shared by all travelers.26
ANALYSIS -- ISSUE 4
Appellant alleged that she sustained an injury on November 22, 2006 when she slipped
and fell on a bus traveling to work. The hearing representative found that the injury was not
covered because she was not on the premises of the employing establishment. However, at the
time of the bus injury appellant indicated that she lived on the premises of the employing
establishment and was traveling to her duty station. The Board has accepted that, as a general
matter, injuries occurring on the premises of the employing establishment, while the employee is
going to or from work, before or after working hours or at lunchtime are compensable.27 In
Emma Varnerin, M.D.,28 an employee who rented a room from the employing establishment was
injured while walking from her living quarters on one part of the employing establishment’s
grounds to the building where she worked. The employee slipped on the steps of her dormitory
walking out of the building on her way to work. The Board held that the employee was in the
course of employment once she left her living quarters because she was on the premises of the
employing establishment.
Proceedings under the Act are not adversarial in nature, nor is the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.29 Appellant
asserted that on November 22, 2006 she was living on the premises of the employing
establishment and that she rode a bus to work. It is not clear from her statement, however,
whether the bus was on the premises of the employing establishment at the time of her alleged
fall. The case will be remanded for the Office to further develop the factual evidence to
determine whether appellant was in the performance of duty at the time of the November 22,
2006 incident.
LEGAL PRECEDENT -- ISSUE 5
The Board has recognized, as a general rule, that off-premises injuries sustained by
employees having fixed hours and places of work, (while going to or coming from work), are not
25

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004).

26

See Denise A. Curray, 51 ECAB 158 (1999).

27

Diane Bensmiller, 48 ECAB 675 (1997).

28

14 ECAB 253 (1963).

29

Phillip L. Barnes, 55 ECAB 426 (2004).

8

compensable as they do not arise out of and in the course of employment.30 Such injuries are
merely the ordinary, nonemployment hazards of the journey itself which are dependent upon the
particular facts relative to each claim. These exceptions pertain to the following instances:
(1) where the employment requires the employee to travel on highways; (2) where the employer
contracts to and does furnish transportation to and from work; (3) where the employee is subject
to emergency calls, as in the case of a fireman; and (4) where the employee uses the highway to
do something incidental to his/her employment with the knowledge and approval of the
employer.31
There are four categories of “off-premises” employees recognized by the Office in its
procedure manual:
“(1) Messengers, letter carriers and chauffeurs who, by the nature of their work,
perform service away from the employer’s premises;
“(2) Traveling auditors and inspectors whose work requires them to be in a travel
status;
“(3) Workers having a fixed place of employment who are sent on errands or
special missions by the employer; and
“(4) Workers who perform services at home for their employer.”32
ANALYSIS -- ISSUE 5
Appellant contended that she was injured on June 19, 2008 riding in a commercial
taxicab from her apartment to her work location to pick up a nontactical vehicle that was
undergoing repairs. She also argued that she did not have fixed hours of employment but was
instead an emergency essential worker with irregular work hours.
In a February 13, 2009 statement, the employing establishment indicated that June 19,
2008 was a scheduled day off for appellant. It did not provide any further information, however,
such as addressing whether it was part of her assigned work duties to pick up her vehicle on that
date. The Office did not request any statement from the employing establishment regarding
appellant’s claimed June 19, 2008 motor vehicle accident.33 Although it is appellant’s burden to
30

Paul R. Gabriel, 50 ECAB 156 (1998).

31

Id.

32

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(a) (August 1992);
see also Godfrey L. Smith, 44 ECAB 738 (1993).
33

The Office’s procedure manual provides: “If the agency has factual evidence which is necessary to make a
decision in the claim such as exposure data, the [claims examiner] should make a written request with a copy to the
claimant, indicating a time period within which the agency should reply. The agency should be advised that if it
fails to provide the requested information, a decision will be made on the basis of available evidence and that the
claimant’s statements, if sufficiently clear and detailed, may be accepted on matters in which he or she is
knowledgeable.” Federal (FECA) Procedure Manual, supra note 32 at Chapter 2.800.7(a) (January 2004); see also
20 C.F.R. § 10.117(b).

9

establish her claim, the Office is not a disinterested arbiter but, rather, shares responsibility in the
development of the evidence, particularly when such evidence is of the character normally
obtained from the employing establishment or other government source.34 On remand, the
Office should further develop the factual evidence to determine whether she had a fixed time and
place of employment or whether she was an off-premises employee. If appellant had a fixed
time and place of employment, it should determine whether she falls under one of the exceptions
to the premises rule. Following this and any other development deemed necessary to determine
whether the June 19, 2008 incident occurred in the performance of duty, it should issue a de novo
decision.
CONCLUSION
The Board finds that appellant has not established that she sustained a condition due to
exposure to toxic fumes as a result of factors of her federal employment or a cervical or stressrelated condition causally related to work factors. The Board further finds that the case is not in
posture for decision regarding whether she was injured on November 22, 2006 and June 19, 2008
in the performance of duty.

34

See Claudia A. Dixon, 47 ECAB 168 (1995).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 26 and April 20, 2009 are affirmed in part and set aside in
part and the case is remanded for further proceedings consistent with this opinion of the Board.
Issued: October 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Columbia, SC,
Employer
__________________________________________

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)
)
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)
)
)

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

Docket No. 16-0152
Issued: March 10, 2016

Case Submitted on the Record

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

JURISDICTION
On November 3, 2015 appellant, through counsel, filed a timely appeal from a
September 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related disability from
January 16 to February 10, 2009 or March 26, 2009 to July 24, 2014.
FACTUAL HISTORY
The case has previously been before the Board. On January 30, 2009 appellant, then a
48-year-old mailhandler, claimed he sustained a hernia in the performance of duty on January 16,
1

5 U.S.C. § 8101 et seq.

2009 when he was unloading a truck. He stopped work on January 16, 2009 and did not return.
The issue before the Board in the prior appeals was whether appellant had established a hernia
condition causally related to the January 16, 2009 employment incident. By decision dated
February 7, 2011, the Board found that while an employment incident on January 16, 2009 was
established, the medical evidence did not establish a diagnosed hernia condition casually related
to the accepted incident.2 In an April 10, 2013 decision, the Board again found that the medical
evidence was insufficient to establish the claim.3 OWCP has now accepted the claim for an
aggravation of ventral hernia. As the current issue concerns disability for work, the Board will
review the previous medical evidence of record with particular focus on that particular issue.
Appellant was treated by Dr. Jon Stanford, a Board-certified surgeon, on
January 29, 2009. Dr. Stanford reported that appellant had noticed some abdominal wall
discomfort, usually associated with heavy lifting and standing. He provided results on
examination and indicated that appellant appeared to have a ventral hernia. Dr. Stanford
recommended surgical repair of the hernia. In a note dated February 5, 2009, Dr. Joseph
Williams, a Board-certified internist, wrote that appellant was under his care for “medical
problems” from January 31, 2009 and could return to work on February 9, 2009. In a (Form CA17) (duty status report) dated February 9, 2009, Dr. Stanford indicated that appellant would be
unable to work for six weeks. By form report dated February 9, 2009, Dr. Williams indicated
that appellant was initially treated on January 27, 2009 and he diagnosed ventral hernia. He
indicated that there would be no permanent effects after surgery, although hernias can reoccur.
On February 11, 2009 appellant underwent laparoscopic hernia repair with mesh surgery
by Dr. Stanford. In a report dated February 23, 2009, Dr. Stanford indicated that appellant still
had complaints of pain following surgery, and would not be able to return to normal work for
two to four weeks. He completed a “disability certificate” indicating that appellant was totally
disabled from February 11 to March 25, 2009. By report dated February 24, 2009, Dr. Williams
reported that appellant was “scheduled to go back to work within the next several weeks. His
prognosis is good. [Appellant] apparently will be on disability for at least [two] months, perhaps
[three] months.”
Dr. Stanford provided a brief report dated March 17, 2009, reporting that appellant had
stated that he could not return to work secondary to pain issues. He indicated that appellant
“does have some discomfort on the lateral aspects of his wound near the fascial suture scars
though I cannot appreciate any seroma recurrence or other significant pathology distraction.”
According to Dr. Stanford, appellant stated that he could not go back to work and was applying
for disability. He completed a duty status report (Form CA-17) dated March 17, 2009 indicating
that appellant could work six to eight hours with restrictions.
By report dated March 24, 2009, Dr. Stanford indicated that appellant complained of pain
in his abdomen. He provided results on examination, reporting that he could not find any port
site hernias or significant pain on examination. Dr. Stanford reported that the pain was probably
normal postoperative pain and would resolve with time. In a report dated September 28, 2009,
2

Docket No. 10-1358 (issued February 7, 2011).

3

Docket No. 13-0140 (issued April 10, 2013).

2

he indicated that appellant failed to follow up with treatment after March 24, 2009. Dr. Stanford
reported that a computerized tomography (CT) scan dated March 20, 2009 showed normal
postoperative changes. As to disability, he reported that appellant had been given six weeks of
total disability after surgery. Dr. Stanford noted that on March 17, 2009 appellant had reported
that he felt he could not go back to work, and some work restrictions were provided as work
activity could exacerbate abdominal pain.
OWCP accepted the claim for aggravation of ventral hernia on July 9, 2014. On
August 14, 2014 appellant filed a (Form CA-7) claim for compensation for the period
January 16, 2009 to July 24, 2014.
Appellant submitted a September 26, 2014 note from Dr. Williams, noting that the
February 2009 surgery involved placement of a mesh. Dr. Williams wrote appellant “can no
longer work in this type of job because of the hernia.”
By decision dated October 9, 2014, OWCP denied the claim for wage-loss compensation
commencing January 16, 2009. It found that the medical evidence was insufficient to establish
an employment-related disability.
On October 16, 2014 appellant, through counsel, requested a hearing before an OWCP
hearing representative. A hearing was held on March 27, 2015. On April 17, 2015 appellant
submitted a CA-20 form report from Dr. Jonessa Atienza, a Board-certified internist.
Dr. Atienza diagnosed ventral hernia and wrote that appellant could not perform heavy lifting.
By report dated April 27, 2015, she related that she first treated appellant on February 3, 2015
and noted a reducible ventral hernia which had been documented on prior examinations.
Dr. Atienza asserted that since the January 16, 2009 employment injury he had been unable to
work. She opined that because of the ventral hernia appellant “cannot resume work which
entails heavy lifting.”
By decision dated May 22, 2015, the hearing representative modified the October 9, 2014
OWCP decision. The hearing representative found that appellant was entitled to compensation
from February 11 to March 25, 2009 based on the hernia surgery and the medical evidence, but
compensation from January 16 to February 10, 2009, and from March 26, 2009 to July 24, 2014,
remained denied as the medical evidence did not establish an employment-related disability.
Appellant, through counsel, requested reconsideration on June 30, 2015. He submitted a
June 22, 2015 report from Dr. Atienza, again writing that appellant had been unable to return to
work. Dr. Atienza noted that she did not evaluate appellant in 2009, but “ventral hernias can be
aggravated by heavy lifting and as such [appellant] cannot resume work which entails this type
of activity.”
By decision dated September 16, 2015, OWCP reviewed the merits of the claim and
found that the evidence was insufficient to warrant modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including that any disability or specific condition for which
3

compensation is claimed is causally related to the employment injury.4 Whether a particular
injury causes an employee to be disabled for work, and the duration of that disability, are
medical issues that must be proven by a preponderance of the reliable, probative, and substantial
medical evidence.5
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value, and its convincing quality. The factors which
enter into such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.6 Medical rationale is a medically sound explanation for the opinion offered.7
ANALYSIS
In the present case, OWCP accepted that appellant sustained an aggravation of a ventral
hernia on January 16, 2009. The issue is the period of disability causally related to the
employment injury.
The hearing representative found that appellant was entitled to
compensation from the time of hernia surgery on February 11, 2009 through March 25, 2009.
Therefore, the remaining periods of disability claimed are January 16 to February 10, 2009, and
March 26, 2009 to July 24, 2014.
With respect to the period January 16 to February 10, 2009, there is little evidence
regarding disability. Dr. Stanford treated appellant on January 29, 2009, but he noted only a
complaint of some abdominal wall discomfort. He did not refer to appellant’s job duties or opine
that appellant was disabled for work. The brief note from Dr. Williams dated February 5, 2009
refers to disability from “medical problems” without further explanation. The CA-17 form
dated February 9, 2009 from Dr. Stanford opines that appellant will be disabled for six weeks.
This is consistent with his opinion as to the recovery from the surgery on February 11, 2009,
which has been accepted by OWCP. The Board finds no probative medical evidence
establishing disability from January 16 to February 10, 2009 due to the accepted employment
injury.
The period from March 26, 2009 to July 24, 2014 is similarly lacking in probative
medical evidence supporting an employment-related disability for the mail handler position. It is
important to note that the possibility of a future injury or disability is not compensable under

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

6

Gary R. Sieber, 46 ECAB 215 (1994).

7

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).

4

FECA.8 That is, an opinion that a claimant could suffer a recurrence of a condition if returned to
work does not establish an employment-related disability.9
Dr. Stanford found that appellant would be disabled for six weeks after the February 11,
2009 hernia surgery, or March 25, 2009. On March 17, 2009 he reported that appellant felt he
could not go back to work. This is insufficient to establish an employment-related disability.
Appellant’s own belief that he is not able to go back to work does not establish disability for
work.10 Dr. Stanford does not provide detailed results on examination or a rationalized opinion
that appellant would continue to be disabled for his date-of-injury position. In a March 24, 2009
report, he notes that there was no significant pain on examination. Dr. Stanford does not discuss
appellant’s job duties or provide a rationalized opinion that appellant was disabled due to the
employment injury.
In the September 28, 2009 report, Dr. Stanford acknowledges that appellant did not
follow up after the March 24, 2009 examination, and the CT scan dated March 20, 2009 had
shown normal postoperative changes. He noted that work restrictions had been provided on
March 17, 2009 as work could exacerbate the condition. As noted, the fear of a future
exacerbation is not a compensable disability.
The additional medical evidence of record does not establish an employment-related
disability from March 26, 2009 to July 24, 2014. The brief note from Dr. Williams indicated
only that appellant “could no longer work in this type of job” without further explanation. He
does not provide a factual history discussing appellant’s job duties or provide additional medical
rationale regarding disability.
The reports from Dr. Atienza are of limited probative value to the issue presented. In the
April 27, 2015 report, she refers to heavy lifting, and in the June 22, 2015 report opines that
heavy lifting can aggravate a hernia and appellant could not resume such work. Again, the
possibility of a future aggravation does not establish an employment-related disability.
The Board finds that the evidence of record does not contain a medical report with a
complete background and an opinion supported by medical rationale that established an
employment-related disability for the periods claimed. In the absence of probative medical
evidence, the Board finds that appellant has not established an employment-related disability
from January 16 to February 10, 2009 or March 26, 2009 to July 24, 2014.
On appeal, appellant argues that the medical evidence of record is sufficient to establish
an employment-related disability. For the reasons discussed, the Board finds the evidence does
not establish disability causally related to the employment injury for the periods claimed.

8

C.B., Docket No. 15-1565 (issued November 17, 2015); Mary Geary, 43 ECAB 300, 309 (1991).

9

See Pat Lazarra, 31 ECAB 1169, 1174 (1980) (fear of a recurrence of disability upon return to work is not a
basis for compensation).
10

M.H., Docket No. 15-1611 (issued November 3, 2015).

5

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 established an employment-related disability for
the periods January 16 to February 10, 2009 or March 26, 2009 to July 24, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 16, 2015 is affirmed.
Issued: March 10, 2016
Washington, DC

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

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

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

6