United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Mather, CA, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-450
Issued: December 19, 2008

Oral Argument September 17, 2008

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

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from the September 7, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the issue. The Board also has jurisdiction to review the Office’s September 27,
2007 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied a merit review of its June 15,
2006 decision approving $5,189.00 in attorney fees.
FACTUAL HISTORY
On February 2, 2006 appellant, then a 53-year-old air traffic control specialist, filed a
claim alleging that her elevated blood pressure, among other conditions, was a result of stress at

work. She submitted an 18-page statement to support that her elevated blood pressure was a
direct result of work-related stress due to her supervisors and other employees “attempting to
make me feel that I was inadequate in the performance of my duties.” Appellant attributed her
condition to her supervisor, Marty Clark, who she stated made clear that he did not like her and
who was extremely demeaning “and always made it very clear that he was supervisor and I was
the peon worker.” She alleged that Mr. Clark and controllers, Mark Thacker, Mike Witte and
Mike Donnelly, picked on her, ridiculed her and created an unpleasant work environment.
Mr. Thacker allegedly opened a drawer into her groin when she was standing there and opened
cabinets into her face when she passed by. Because they parked their cars near hers, she
suspected the men of putting nails into her tires on numerous occasions. Appellant stated that
the men chewed tobacco and “someone” spit into her Cleveland Browns cup. When she
complained, her red plastic drinking cup disappeared. Two to three times a week, appellant
stated, someone unscrewed the tops of her water bottles and turned them upside down in her tote
bag so they would leak all over her sweater and books.
Appellant stated that in November 2001 Mr. Clark was telling her what to do with each
aircraft to meet the three-mile separation standard for Air Force One. She knew there was no
such standard and did things she deemed of greater priority before following Mr. Clark’s
instructions. Mr. Clark then challenged her about her delay in following his instructions and
took her off her position. He called her into the conference room and for 52 minutes he
“berated” her with statements like “I was n[o]t worth the money they paid me! I was nothing
special! Supervisors did n[o]t have confidence in me.” Appellant contended that Mr. Clark
acted inappropriately toward her. She considered the rebuke unwarranted and unfair.
Appellant stated that in January 2003 Mr. Witte turned her in for doing a bad job while
working the Delta Sector. During the subsequent investigation, she began having the same
symptoms she had when Mr. Clark berated her in 1999. Appellant stated that, from
January 2003 to December 2004, Mr. Witte complained of her job performance 13 times. Each
time an investigation followed and she was exonerated of all charges. Appellant felt as though
her coworkers were becoming distrustful of her job performance due to the shear number of
charges and investigations, which unfairly jeopardized her reputation.
Appellant described an incident in February 2003 in which Dave Brown, a controller,
failed to “point out” that an aircraft he was monitoring had entered her airspace. She stated that
Mr. Clark started yelling at her “That’s right, take a point out then run over him!” Appellant felt
that Mr. Clark left her solely to blame for the incident, though she was found to be without fault.
“This was getting very old,” she stated. “Even though I was always exonerated of the false
accusations against me, nothing was ever done to any of these individuals to prevent this
constant mistreatment.” Appellant described another situation in which Mr. Thacker failed to
give a “point out” and blamed her for his deficiency. She described several other incidents in
which complaints about her performance were investigated. Appellant was exonerated, but
management did nothing about the person who made the complaint.
Appellant described an incident on July 31, 2003 in which Mr. Clark approached her with
clenched fists, bulging eyes and a red face and told her he had a few things to get off his chest.
She was afraid he was going to hit her. In December 2003, appellant stated that Messrs. Witte,
Thacker and Donnelly made derogatory remarks about her job performance, manipulated the

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break board, intentionally passed her for breaks, made fun of her and mimicked her in a high
voice.
Appellant described how one coworker told her there was a group of people out to get
her, and how another coworker told her that others were listening to a tape recording of a control
room conversation in which disparaging remarks were made about her. She also described how
others manipulated the Controller-in-Charge (CIC) assignment to avoid passing it to her, causing
her to miss out on a great deal of differential pay.
Appellant stated that on September 14, 2004 Mr. Witte said the following to her in front
of everyone: “You are so irritating. You can[no]t control traffic. You just do n[o]t get it.” She
stated that he was yelling at her.
Appellant described an incident on October 12, 2004. She was working a very busy
sector and having difficulty. Appellant stated that Mr. Donnelly began laughing at her, rolling
his eyes, smirking with his hand over his mouth and pointing at her. She described another
incident on December 9, 2004 in which Mr. Donnelly turned her in to Mr. Witte, the CIC, for an
operational error regarding wake turbulence separation. Mr. Witte immediately began chanting
“deal-o-rama.” Managers reviewed a reenactment, which appellant explained was a big deal,
something more than just listening to event on the recorder. It was concluded that there was no
error.
Appellant explained how this treatment affected her physically and emotionally. She
eventually applied for retirement, effective April 1, 2005.
The Office asked the employer to provide comments from a knowledgeable supervisor on
the accuracy of appellant’s statement. The employer submitted a March 9, 2006 statement from
David Dodd, Mr. Clark’s first-line supervisor and appellant’s second-level manager during the
time in question. Mr. Dodd stated that his duties included general oversight of the supervisors,
controllers and the operation. He had several one-on-one meetings with appellant about her
concerns, which he investigated, but he stated that her complaints were often general in nature,
so it was difficult or impossible to substantiate her allegations. Mr. Dodd stated that Mr. Clark
treated all employees in an equitable and fair manner. He stated that appellant never complained
to him about Mr. Clark, and he never saw Mr. Clark behave in a demeaning manner toward her.
Mr. Dodd never saw anyone park near or tamper with appellant’s car. He stated two individuals
at work did chew tobacco, but they were not those cited in appellant’s statement. Mr. Dodd
stated that appellant was not singled out about her performance: “We constantly review and
critique employees’ performance. This is a daily occurrence that involves all employees.”
Mr. Dodd knew of no instance of other controllers entering her airspace. He explained that, if
such an event occurred, it would have to be investigated and a report would be filed, and he
would have been the person to investigate and generate the report. Mr. Dodd stated that
appellant was accorded CIC assignments in an equitable manner and as mandated by union
contract. This was ensured by tracking the number of hours each controller acted as CIC.
Mr. Dodd noted that, in his duties as the quality assurance manager, he conducted the full review
(reenactment) of the separation incident appellant described. He explained that it was appellant

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who initiated the review by informing her supervisor that she thought she had an operational
error. The review showed no such error. Mr. Dodd concluded:
“[Appellant] was always treated in a fair and equitable manner. Management at
times bent over backward to accommodate her various requests. During the time
I worked with [her], I never observed discrimination or harassment by either FAA
[Federal Aviation Administration] management or her coworkers. I had several
conversations with [appellant] where I indicated the fact that I did not see anyone
treating her in a less than satisfactory manner.”
A December 22, 2004 statement from Kelley R. Althouse, Operation Supervisor,
confirmed Mr. Dodd’s account that it was appellant who self-reported the error on
December 9, 2004. When no error was found, Ms. Althouse asked appellant why she reported an
error if she thought there was none. Appellant replied that she thought that “the guys were going
to report it.” Ms. Althouse stated that at no time did she observe anyone harass appellant.
Appellant submitted documents relating to her complaint with the Equal Employment
Opportunity (EEO) Commission.
In a decision dated March 31, 2006, the Office denied appellant’s claim for
compensation. It found that she failed to establish a compensable factor occurring in the
performance of duty.
In a decision dated June 15, 2006, the Office approved $5,189.00 in attorney fees. It
found that the services were of the type reasonably performed in connection with a workers’
compensation claim and the file indicated the services were in fact performed. The Office noted
that appellant received several invoices indicating that additional services were being performed,
and she did not contest them until her claim was denied. It found that appellant appeared to
agree to pay for the services by not contesting them when she received the invoices. The Office
added that the denial of her claim did not, in itself, establish that the services were not performed
or were unreasonable or inappropriate.
Appellant requested reconsideration of the Office’s March 31, 2007 decision. She
contended that Mr. Dodd worked on the opposite side of the building from where she and
Mr. Clark worked, had no actual duties, was not Mr. Clark’s supervisor and could not possibly
have any firsthand knowledge of her claims. Appellant asserted that Mr. Clark and Mr. Dodd
were best friends and drinking buddies. She alleged that Mr. Clark denied her over $400.00 in
CIC pay. Appellant submitted a CIC tracking sheet and a note indicating a correction was made
to her CIC hours. She attacked the credibility of Ms. Althouse, stating that the incident on
December 9, 2004 occurred at approximately 9:40 a.m. and that Ms. Althouse did not report for
duty until 10:00 a.m. that day and was not present at the time of the incident. Appellant
emphasized that she did not turn herself in for an operational error. She noted that Mr. Clark
denied multiple leave and familiarization travel requests and that union representatives went over
his head to have her leave approved. She claimed that she was first or higher up on the request
list. Appellant also argued that her break time was changed more than that of other employees.
She stated that the employer’s refusal to reassign her to staff duties violated the union contract.
Appellant added that she had repeatedly asked for alternative placement.

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The Office received a January 31, 2005 affidavit that Mr. Clark provided to special
agents. Mr. Clark stated that he no longer supervised appellant because he moved out of that
area to avoid interaction with her, to avoid conflict. He denied ever making sexist comments in
the workplace, ever stating that a supervisor had a dimpled butt, ever treating any employee
differently based on gender, ever verbally berating appellant, ever promoting misconduct and
antics directed at appellant because of her gender, or ever yelling or behaving in a condescending
way toward her. Mr. Clark acknowledged that he did tell appellant he had a bone to pick with
her when he heard that she was telling other employees that he had “submarined” her chances for
promotion: “She became upset and immediately got a union rep over the matter.” He denied
treating male and female employees differently as to leave or breaks or other perquisites or
scheduling. Mr. Clark denied ever ridiculing and laughing at appellant’s complaints related to
harassment and discrimination. He denied ever delaying the timing of appellant’s approved
breaks or assignment and leave requests because of her gender. Mr. Clark denied ever treating
female employees differently when making shift assignments or making vulgar phrases directed
at women, including appellant, in the workplace. He also denied ever blocking appellant’s
access to her car:
“No, I drive a pick up truck and part between the lines. I usually park in the
outside areas of the parking lot to avoid parking conflicts.
“I do not know why [appellant] believes I have discriminated toward her in any
manner. I have never had any employee complain about me discriminating
against them for any reason. As far as her not getting selected for promotion I
was not part of the process nor was I asked for input on the selection. I have not
yelled at [appellant] or spoke to her in a condescending manner, this may be her
perception [of] my manner of speaking and words I may use.
“Appellant started making accusations about me after she was not selected for a
promotion.”
In a July 15, 2004 affidavit, Daniel Brekke, an air traffic control specialist, stated that he
overheard Mr. Clark make negative comments about females: “for example, he has stated that
when he was driving on the way to work a female driver cut him off and he described her as
‘… that bitch….’” On another occasion when he was making mention of the … [a]ir [t]raffic
[m]anager … he referred to her as having a ‘dimpled butt….’”
In a July 31, 2004 affidavit, Daniel McGuane, another air traffic control specialist, stated
that appellant was discriminated against based on sex because familiarization benefits were
denied her in an arbitrary manner, time off was denied her when it was available to others,
Mr. Clark blocked her car, and breaks were made unusually difficult for her to obtain. He stated
that some of the foregoing also occurred with males, but all occurred to appellant on a constant
basis. In a February 1, 2005 affidavit, Mr. McGuane added that he believed Mr. Clark treated
appellant unfairly: “When he speaks to [her] he speaks to her in a different tone and manner than
he does to other employees.” He believed that Mr. Clark also discriminated against him for
being late and not admonishing others. Mr. McGuane then addressed the parking incident:
“Yes, he parked very close to the driver side of her car in the stall so close that she would not be

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able to open her door. Mr. Clark drives a large pick up truck and [appellant] drives a small red
sports car.”
On May 11, 2007 Donald H. Kirby, acting air traffic district manager, responded to
appellant’s reconsideration request. He advised that Mr. Dodd was in fact Mr. Clark’s
immediate supervisor for several years and was actively involved in Quality Assurance/
Performance Review functions. Mr. Kirby noted that appellant never filed a grievance about
being denied CIC duties or losing CIC premium pay. He rebutted appellant’s statement that
Ms. Althouse was removed from the area for disciplinary reasons. Mr. Kirby explained that
familiarization trips, which allowed controllers to travel via airline jump seats out of the local
commuting area for training, were subject to operational needs and staffing limitations. The
program was canceled after September 11, 2001, and appellant never filed a grievance about
request denials. Mr. Kirby stated that appellant did request reassignment in December 2004, but
no vacancies were available,1 no position could be created, and appellant’s medical
documentation recommended she be off work.
On May 15, 2007 Dale P. Durbin, program consultant, responded to appellant’s request
for reconsideration which he stated amounted to no more than an attempt to discredit agency
witnesses and consisted of allegations with no basis in fact. He stated that Mr. Dodd was
appellant’s second-level supervisor during a significant portion of the period in question.
Mr. Durbin argued that appellant’s response to the administrative action of offering or not
offering as assignment warranting CIC pay was not compensable. He denied impropriety in CIC
assignments, familiarization training or allocation of mandatory breaks.
Appellant submitted a 10-page reply dated June 14, 2007. Among other things, she took
issue once again with Mr. Dodd’s statement. Appellant argued that he was not in a position to
have any firsthand knowledge of any of the claims under investigation. She also argued that
Mr. Kirby was not in any position to make comments and questioned the statement of
Mr. Durbin.
In a decision dated September 7, 2007, the Office reviewed the merits of appellant’s
claim and denied modification of its prior decision.
On August 10, 2007 appellant advised the Office that she submitted a request for
reconsideration of the June 15, 2006 decision approving attorney fees. She stated that she
submitted this request on March 1, 2007.
In a decision dated September 27, 2007, the Office found that appellant’s August 10,
2007 request for reconsideration was untimely and failed to present clear evidence of error in the
Office’s June 15, 2006 decision approving attorney fees. It denied reopening appellant’s case for
a merit review of the issue.

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Mr. Kirby quoted the union contract: “At his/her request, an employee who is temporarily medically or
physically unable to perform active air traffic control duties, shall be assigned to other facility duties, to the extent
such duties are available.”

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LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act2 provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.3
Workers’ compensation law does not cover each and every injury or illness that is somehow
related to employment.4 An employee’s emotional reaction to an administrative or personnel
matter is generally not covered. Nonetheless, the Board has held that error or abuse by the
employing establishment in an administrative or personnel matter, or evidence that the employing
establishment acted unreasonably in an administrative or personnel matter, may afford coverage.5
The Board has held that actions of an employer which the employee characterizes as
harassment or discrimination may constitute a factor of employment giving rise to coverage
under the Act, 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.6 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.7 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 the Office and the Board.8
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.9
ANALYSIS -- ISSUE 1
Appellant attributed her elevated blood pressure and other conditions to both the actions
of management, in particular her supervisor Mr. Clark, and the actions of coworkers, primarily

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Margreate Lublin, 44 ECAB 945 (1993).

6

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).
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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).
8

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

9

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

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controllers Messrs. Witte, Donnelly and Thacker. The Board will first address the allegations
against management.
Appellant has not attributed her emotional condition to the regular or special assigned
duties of her position as an air traffic controller. Therefore, she has not alleged a compensable
factor under Cutler. As to administrative error or abuse her claim against management is not
something that workers’ compensation generally covers. Any stress or other emotional reaction
she might have had to the actions, or inaction, of her supervisors and managers is not
compensable absent error or abuse by management.
Appellant alleged instances of error and abuse by Mr. Clark. She reported that he was
extremely demeaning to her, picked on her, ridiculed her and generally created an unpleasant
environment for her. Appellant must do more than make allegations. She must prove her
allegations of error or abuse. Appellant’s claims that someone put nails into her tire, spit tobacco
into her Cleveland Browns cup, removed her red plastic drinking cup, and unscrewed the tops of
her water bottles and turned them upside down in her tote bag. These allegations are very
general and not made directly at Mr. Clark or anyone else in management. Appellant did not
know who did these things. She did not submit evidence of error or abuse by her managers as to
these allegations.
Appellant also described the three-mile separation incident in November 2001, the “point
out” incident in February 2003 and the “bone to pick with her” incident on July 31, 2003.
Appellant did not establish, however, that Mr. Clark acted inappropriately when he gave her
instructions or took her off her position for not following instructions or called her into the
conference room. She noted that the rebuke was unwarranted and unfair, but submitted
insufficient evidence for the Board to determine that Mr. Clark berated her, much less for 52
minutes. Appellant did not prove that he yelled at her, or if he did, that what he said was
inappropriate or constituted verbal abuse.10 She did not prove that he approached her with
clenched fists, bulging eyes and a red face. These are all unsupported allegations of abuse, and
as such, do not bring appellant’s claim within the scope of the Act.
Appellant alleged that Mr. Clark denied her over $400.00 in CIC pay. While there is
some evidence that a correction was made to her CIC hours,11 there is no proof that Mr. Clark
engaged in CIC manipulation or any other kind of error. Superiors might have approved leave
that Mr. Clark denied, but appellant did not establish abuse of discretion or other error on the
part of Mr. Clark. Management explained that familiarization trips were subject to operational
needs and staffing limitations.
Appellant submitted statements from other controllers, Mr. Brekke and Mr. McGuane,
but they do not support her claim for compensation. Mr. Clark’s description of a female driver
who cut him off on the way to work is quite immaterial to appellant’s case. Mr. McGuane made
very general statements in support of appellant’s claim, but he did not explain how he had
10

The Board has generally held that being spoken to in a raised or harsh voice does not in itself constitute verbal
abuse or harassment. Beverly R. Jones, 55 ECAB 411, 418 (2004).
11

It appears she did not work as many CIC hours as she was given credit.

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firsthand knowledge or provide enough specifics to establish the general conclusions he reached.
It appears his most probative observation relates to the parking incident.
For his part, Mr. Clark denied any misconduct. He denied ever berating appellant or
yelling at her or behaving in a condescending way toward her. Mr. Clark denied ever delaying
the timing of her approved breaks or treating her differently when making assignment shifts. He
provided an affidavit that negates numerous allegations of her claim for compensation.
Mr. McGuane disputed Mr. Clark’s statement that he never blocked appellant’s access to her car,
but did not provide specific information as to when such incident took place. Mr. Brekke
rebutted Mr. Clark’s statement that he never said a supervisor had a dimpled butt. However, his
statement does not establish that Mr. Clark directed such remarks towards appellant.
Appellant alleged that management took no action against those who made performance
complaints against her. “Nothing was ever done to any of these individuals,” she stated, “to
prevent this constant mistreatment.” Beyond appellant’s perception in the matter, the evidence
again is not sufficient to establish administrative error. Appellant alleged that the employer’s
refusal to reassign her to staff duties violated the union contract. But the employer quoted the
applicable provision in full and explained that no vacancies were available, no position could be
created, and appellant’s medical documentation recommended that she be off work.
Appellant also attributed her condition to general rumor and gossip. Someone told her
there was a group of people out to get her. Someone else told her other people were listening to
a recording that contained disparaging remarks about her. The evidence does not identify the
occurrences of these allegations with specificity as to date or identity or individuals involved.12
Appellant questioned the statements submitted by Mr. Dodd, Ms. Althouse, Mr. Kirby
and Mr. Durbin. However, she bears the burden of proof to establish the essential elements of
her claim by the weight of probative evidence. Appellant’s effort to impeach the credibility of
these statements does not lessen her responsibility to establish a factual basis for her claim
through affirmative and convincing evidence.
Having reviewed and considered the evidence of record, the Board finds that appellant
has not met her burden of proof to establish error or abuse by management. Appellant has failed
to establish that her stress or emotional reaction to Mr. Clark or others in management falls
within the scope of workers’ compensation. The Board will therefore affirm the Office’s
September 7, 2007 decision on the issue of administrative error or abuse.
As noted, appellant also implicated the actions of several coworkers, primarily
Messrs. Witte, Donnelly and Thacker. The Office did not request any response from these
individuals to her allegations. The record contains no statement from Messrs. Witte, Donnelly or
Thacker. The Board finds that further development is necessary to secure such evidence from
the employer. The Board will therefore set aside the Office’s September 7, 2007 decision, in
part, and remand the case for further development. The Office should provide the employer with
12

In Gracie A. Richardson, 42 ECAB 850 (1991), the employee asserted that she was devastated by perceptions
of coworkers gossiping behind her back and spreading rumors concerning her marital and personal relationships.
The Board found that appellant’s fear of gossip and rumors was a personal frustration and not compensable.

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a statement of appellant’s allegations made against these individuals and should request a
response from each individual to her allegations. Following such further development of
evidence as may be necessary, the Office shall issue an appropriate final decision on appellant’s
claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”13
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence of error on the part of the Office in its most
recent merit decision. The application must establish, on its face, that such decision was
erroneous.14
The term “clear evidence of error” is intended to represent a difficult standard.15 If clear
evidence of error has not been presented, the Office should deny the application by letter
decision, which includes a brief evaluation of the evidence submitted and a finding made that
clear evidence of error has not been shown.16
ANALYSIS -- ISSUE 2
Although appellant stated that she submitted a May 1, 2007 request for reconsideration of
the Office’s June 15, 2006 decision on attorney fees, the record shows no such request. The
Board has reviewed the communications between appellant and the Office during this period and
does not find a single reference to a May 1, 2007 request. On May 22, 2007, only three weeks
after the alleged request, the Office acknowledged receiving two letters requesting

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.607 (1999).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

16

Id. at Chapter 2.1602.3.d(1).

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reconsideration, dated March 28 and May 6, 2007. This would have been an opportune moment
for appellant to advise the Office that she also submitted a May 1, 2007 request concerning the
attorney fees. She did not. Appellant offered no proof, such as a return receipt, to show that she
made such a request. Her August 10, 2007 letter is the first evidence of appellant’s attempt to
seek reconsideration of the attorney fee decision. Appellant’s request is therefore considered to
be made on that date. Because she did not make this request within one year of the Office’s
June 15, 2006 decision, the Board finds it untimely. The only question that remains is whether
this request shows clear evidence of error in the Office’s June 15, 2006 decision.
The Board finds that appellant’s request does not show clear evidence of error.
Appellant’s August 10, 2007 letter simply describes her difficulty speaking to anyone or having
her calls returned. She stated that she received another bill from the attorney and noted that she
disputed the charges. Appellant noted that she submitted lengthy and voluminous documents to
support her claim. Her letter is simply informational. Appellant made no attempt to establish
that the Office’s June 15, 2006 decision was wrong. She submitted no evidence to show that the
Office’s approval of attorney fees was clearly erroneous. Because appellant’s request does not
meet the standard for obtaining a merit review of the attorney fee issue, the Board finds that the
Office properly denied her request. The Board will affirm the Office’s September 27, 2007
decision.
CONCLUSION
The Board finds that appellant has not established her allegations of administrative error
or abuse. The case is not in posture for decision on whether appellant sustained an emotional
condition based on her allegations involving her coworkers. The Board also finds that the Office
properly denied a merit review of its June 15, 2006 decision approving attorney fees.

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ORDER
IT IS HEREBY ORDERED THAT the September 7, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, in part, and set aside in part. The Office’s
September 27, 2007 decision is affirmed. The case is remanded for further action consistent with
this opinion.
Issued: December 19, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Springdale, AR, Employer
__________________________________________

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

Docket No. 11-2071
Issued: April 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 29, 2011 appellant filed a timely appeal from April 15 and June 2, 2011
merit decisions 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 case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on March 4, 2011.
FACTUAL HISTORY
On March 4, 2011 appellant, then a 38-year-old consumer safety inspector, filed a
traumatic injury claim alleging that she fell in the break room during lunch that day. She
1

5 U.S.C. § 8101 et seq.

detailed that her foot was caught when she tried to get off a bench, causing her to lose her
balance and fall. Appellant’s left forearm and inner thigh struck the bench during the descent
and her right arm, shoulder, back and knee struck the floor. The employing establishment
controverted the claim on the grounds that the incident did not occur in the performance of duty.2
In a February 23, 2011 report, Dr. Caleb O. Gaston, a Board-certified family practitioner,
related that appellant experienced chronic bilateral hand symptoms that were “worsened by her
job.” He noted that she performed repetitive activities as a food inspector. On examination,
Dr. Gaston observed mildly-swollen fingers. He diagnosed hand pain, numbness and arthralgia.
In a March 5, 2011 attending physician’s report, Dr. Gaston diagnosed right shoulder
pain. He checked the “yes” box to indicate that the condition was causally related to appellant’s
federal employment and advised that she was totally disabled from March 5 to 12, 2011.
Dr. Gaston also checked the “yes” box to confirm a history of preexisting injury.
OWCP informed appellant in a March 15, 2011 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a medical report from a physician
explaining how the March 4, 2011 employment incident caused or contributed to a diagnosed
condition. OWCP did not receive a response.
By decision dated April 15, 2011, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted March 4, 2011 employment incident was
causally related to left forearm and inner thigh and right arm, shoulder, back and knee injuries.
Appellant requested reconsideration on April 27, 2011 and submitted new medical
evidence. In a March 5, 2011 report, Dr. Gaston noted that she fell at work on March 4, 2011
and injured her right shoulder. He observed posterior right shoulder tenderness and restricted
range of motion (ROM) while x-rays were unremarkable. Dr. Gaston diagnosed right shoulder
joint pain and excused appellant from work for one week. In an April 25, 2011 attending
physician’s report, he checked the “no” box to indicate that the condition was not caused or
aggravated by her federal employment. Dr. Gaston also checked the “no” box to reject a history
of preexisting injury.
On June 2, 2011 OWCP denied modification of the April 15, 2011 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.4 The employee must also establish that she sustained an
2

The case record contains a partially completed Form CA-16 signed by appellant’s supervisor and dated
March 4, 2011.
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

2

injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The case record supports that appellant lost her balance and fell at work on
March 4, 2011. The Board finds that she did not establish her traumatic injury claim because the
medical evidence does not sufficiently demonstrate that this accepted employment incident led to
a left forearm and inner thigh and right arm, shoulder, back and knee condition.
In a March 5, 2011 report, Dr. Gaston related that appellant fell at work on March 4,
2011 and sustained right shoulder joint pain. He also checked the “yes” box in a March 5, 2011
attending physician’s report to indicate that this condition was due to her federal employment.
Dr. Gaston, however, did not offer any medical rationale explaining how the March 4, 2011 fall
pathophysiologically caused or contributed to the right shoulder injury.8 A checkmark response,
without such rationale, is of diminished probative value on the issue of causal relationship.9 The
need for medical rationale was particularly important here because the March 5, 2011 attending
physician’s report acknowledged a preexisting injury.
Dr. Gaston’s subsequent April 25, 2011 attending physician’s report, which concluded
that appellant’s right shoulder injury was not related to her federal employment, lacked probative
value because it expressly contradicted his earlier opinion on causal relationship.10 His
5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

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

8

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

9

Alberta S. Williamson, 47 ECAB 569 (1996).

10

See Cleona M. Simmons, 38 ECAB 814 (1987).

3

February 23, 2011 report was irrelevant as it addressed a bilateral hand condition that resulted
from repetitive motion over a period of time, implicating a separate occupational disease that is
not presently before the Board.11 In the absence of rationalized medical opinion evidence,
appellant did not meet her burden of proof.
Appellant contends on appeal that she sought medical treatment promptly and,
alternatively, that she was unable to address the deficiencies of her case on account of familial
obligations. As noted, the medical evidence remained inadequate to establish a causal
relationship between her federal employment and the purported injuries.
The Board points out that appellant submitted new evidence on appeal. The Board lacks
jurisdiction to review evidence for the first time on appeal.12 However, appellant may submit
new evidence or argument as part of a formal 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 10.607.13
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on March 4, 2011.

11

See 20 C.F.R. § 10.5(q) & (ee). See also John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion
must discuss whether the employment incident described by the claimant caused or contributed to diagnosed
medical condition).
12

20 C.F.R. § 501.2(c).

13

The Board notes that the employer issued a partially completed CA-16 form to appellant on March 4, 2011. A
properly executed CA-16 form creates a contractual obligation, which does not involve the employee directly, to pay
the cost of the examination or treatment regardless of the action taken on the claim. See Elaine M. Kreymborg, 41
ECAB 256 (1989). Although OWCP adjudicated and denied appellant’s claim of injury, it did not adjudicate the
issue of reimbursement.

4

ORDER
IT IS HEREBY ORDERED THAT the June 2 and April 15, 2011 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: April 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 15-0602
Issued: August 11, 2016

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 January 26, 2015 appellant, through counsel, filed a timely appeal from a
December 2, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability commencing July 3,
2010 causally related to his August 25, 1988 employment injury.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.
On September 14, 1988 appellant, then a 33-year-old heavy mobile equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that on August 25, 1988 he injured his lower
back, left arm, neck, shoulder, and groin area while pushing a heavy engine in a buggy. He filed
a second traumatic injury claim (Form CA-1) alleging that on September 13, 1988 he injured his
lower back, neck, left shoulder, and arm, upper back, and groin area while pushing and pulling
an engine on a buggy. OWCP accepted subluxations at T1, T2, T4, L3, L4, and L5, which
resolved as of January 15, 1992 and conversion disorder. By letter dated November 12, 1991, it
placed appellant on the periodic rolls for temporary total disability.
By decision of March 27, 2009, OWCP adjusted appellant’s compensation benefits
effective February 2, 2009, based upon a determination that the position of part-time clerk fairly
represented his wage-earning capacity. In this part-time position, appellant was working four
hours per day based on work restrictions of a second opinion physician. An OWCP hearing
representative affirmed the wage-earning capacity determination on December 9, 2009.
In a March 2, 2011 decision, the Board reversed the December 9, 2009 decision on the
issue of loss of wage-earning capacity (LWEC).3 The Board found that OWCP had failed to
meet its burden of proof to establish that the part-time clerk position was suitable work as
appellant had not worked in the part-time clerk position for more than 60 days at the time of the
LWEC decision.
In a second appeal, the Board issued an order reversing a March 14, 2011 LWEC
decision.4 The Board again found that OWCP had failed to meet its burden of proof to reduce
appellant’s wage-loss compensation effective February 2, 2009 as OWCP had failed to follow its
procedures when it determined that his part-time position working 20 hours per week fairly and
reasonably represented his wage-earning capacity.
The facts and the circumstances of the case as set forth in the Board’s prior decisions are
incorporated herein by reference.5 As noted, the employing establishment had offered appellant
a part-time, modified clerk position working four hours per day. The position required no
pulling, pushing, lifting, kneeling, squatting, or climbing. It did not require walking, sitting,
standing, twisting, bending/stooping, reaching above the shoulder, or operating a motor vehicle
for more than 10-minute intervals. The employing establishment noted that the salary was
$16.55 per hour and that the hours were 12:30 p.m. to 3:30 p.m., but also specifically noted work
would be performed four hours per day. Appellant initially refused the position on November 4,
2008, but subsequently accepted the position and returned to work on January 26, 2009.

3

Docket No. 10-891 (issued March 2, 2011).

4

Docket No. 12-190 (issued June 12, 2012).

5

On January 8, 2010 OWCP granted appellant a schedule award for 13 percent left lower extremity impairment
and 4 percent right lower extremity impairment. The period of the award was from October 25, 2009 to
October 2, 2010.

2

In a July 9, 2009 letter, the employing establishment informed OWCP that appellant had
not worked since March 31, 2009 and had therefore abandoned his position. The letter noted that
appellant had informed his supervisor that he was having a heart procedure, but no medical
evidence was submitted. Appellant subsequently informed the employing establishment that he
was undergoing carpal tunnel surgery and eye surgery.
By letter dated March 21, 2011, the employing establishment informed OWCP that
appellant abandoned his light-duty job as he had not reported to work since July 3, 2010.
In a July 22, 2011 note, Loni Banks, a nurse practitioner, noted that appellant was
disabled from working for the period July 27, 2011 to January 1, 2012 due to his work injury.
In an August 9, 2011 work capacity evaluation form (Form OWCP-5c), Dr. James
Alexander, a treating physician, diagnosed closed lumbar dislocation vertebra and closed
thoracic lumbar dislocation. He opined that appellant had permanent restrictions “and should not
have returned to work.”
In an August 10, 2011 letter, the employing establishment informed OWCP that appellant
had been absent without leave from the employing establishment since July 2010. It noted that
his removal was the result of his abandonment of his light-duty job and subsequent disciplinary
actions and that it was unrelated to his disability or employment injury.
On September 6, 2011 OWCP received a copy of a July 6, 2011 letter from the
employing establisment to appellant. The letter proposed removal from his employment position
due to his “failure to follow proper leave procedures” and because no valid excuse was provided
for his “absence and continuous unauthorized absences since December 6, 2010.” It noted that
the medical evidence he had submitted was insufficient to support his disability claim and that he
had been carried in an absent without leave (AWOL) status until December 6, 2010. Appellant
was provided with his rights and afforded 15 days to reply before a final decision on his removal
would be issued.
On September 10, 2011 appellant was terminated from his position with the employing
establishment due to his continous, unauthorized absence since December 6, 2010 and his failure
to follow the proper leave procedure which required valid medical evidence supporting the
period of his absence.
On January 24, 2012 OWCP received a June 28, 2011 disability note which indicated that
appellant required pulmonary rehabilitation and cardiac evaluation before being released to
return to work. The signature on the form is illegible, but it listed Dr. Shualt Z. Istanbouy,
Board-certified internist with subspeciality certifications in critical care medicine and pulmonary
disease, of SI Respiratory Disease Consultants, LLC.
In a July 31, 2012 work capacity evaluation form (Form OWCP-5c), Dr. Alexander
diagnosed closed lumbar dislocation vertebra and closed thoracic lumbar dislocation. He opined
that appellant had permanent restrictions “and should not return to work.” Dr. Alexander
responded to questions posed by OWCP on July 31, 2012 and referenced the work capacity
evaluation form. He noted a preexisting, nonindustrial disability of coronary artery disease.
Dr. Alexander checked a box marked “yes” to the question of whether the ICD-9-CM diagnosis

3

was established and whether 1988 was an appropriate date for connection to the diagnosed
condition.
On October 24, 2012 appellant filed a claim for recurrence of disability for the period
February 2, 2009 to the present.
By letter dated July 22, 2013, OWCP provided appellant with the definition of a
recurrence and noted the medical evidence required to support his recurrence claim. It also
requested evidence regarding the allegation that he had abandoned his light-duty job. Appellant
was afforded 30 days to provide the requested information.
In a July 16, 2013 work capacity evaluation form (Form OWCP-5c), Dr. Alexander
diagnosed closed lumbar dislocation vertebra and closed thoracic lumbar dislocation. He opined
that appellant had permanent restrictions and was disabled from working.
In a September 18, 2013 letter, appellant’s wife informed her husband’s counsel that
appellant’s attempted return to work in January 2009 resulted in high blood pressure, several
angioplasties, and a triple bypass open heart surgery in May 2010. She related that following his
recovery from the heart surgery appellant’s family physician opined that he was disabled from
working which was attributable to the accepted employment injury.
In an October 7, 2013 letter, counsel sent a letter of correspondence to the Secretary of
Labor to allege that OWCP, as a matter of policy, violated the orders of this Board and violated
its own regulations. He argued in the letter that appellant had not abandoned his light-duty job as
it was a make-shift job. Counsel noted that the position required appellant to relocate from his
home in Illinois and move back to Texarkana, Texas which cost appellant “a great deal of
money” and that due to health problems and financial stress he moved back to Illinois in the
summer of 2010. He requested OWCP to provide wage-loss compensation retroactively for the
period February 2 to October 25, 2009 and on and after October 3, 2010.
By decision dated February 28, 2014, OWCP denied appellant’s claim for a recurrence of
disability commencing July 3, 2010 causally related to his accepted August 25, 1988
employment injury. It found that the evidence of record contained insufficient medical evidence
to support disability on or after July 3, 2010.
By letter dated March 5, 2014, counsel requested a telephonic hearing before an OWCP
hearing representative, which was held on September 9, 2014.
In a July 21, 2014 work capacity evaluation form (Form OWCP-5c), Dr. Alexander
diagnosed closed lumbar dislocation vertebra and closed thoracic lumbar dislocation. He opined
that appellant had permanent restrictions and was disabled from work.
In a July 22, 2014 report, Ms. Banks provided physical examination findings and
diagnosed thoracic and lumbar disc degeneration. She noted that appellant was unable to
perform usual physical activities for his age group and that his physical difficulties impacted his
work capability.
By decision dated December 2, 2014, an OWCP hearing representative affirmed the
February 28, 2014 decision denying appellant’s recurrence claim. The hearing representative
4

found that the evidence of record failed to establish that appellant had to cease work on July 3,
2010, due to a change in the nature and extent of his employment or his light-duty job
requirements.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of disability and to show that he or she cannot perform such light duty.6 As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty requirements.7 This term also
means an inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn, (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.8
A recurrence of disability is defined as the inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which had resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.9 The Board has held that whether a particular injury causes
an employee to be disabled for work is a medical question that must be resolved by competent
and probative medical evidence.10 The weight of medical opinion is determined on the report of
a physician, who provides a complete and accurate factual and medical history, explains how the
claimed disability is related to the employee’s work and supports that conclusion with sound
medical reasoning.11
ANALYSIS
OWCP accepted that appellant sustained subluxations of T1, T2, T4, L3, L4, and L5, on
August 25, 1988, which resolved as of January 15, 1992 as well as a conversion disorder due to
the August 25, 1988 work injury. Appellant returned to a part-time, sedentary position on
January 26, 2009. The employing establishment terminated him from employment for cause
effective December 6, 2010. OWCP denied appellant’s claim for a recurrence of disability
commencing July 3, 2010 and that decision was affirmed by an OWCP hearing representative on
6

K.C., Docket No. 08-2222 (issued July 23, 2009); Richard A. Neidert, 57 ECAB 474 (2006).

7

C.S., Docket No. 08-2218 (issued August 7, 2009); Joseph D. Duncan, 54 ECAB 471 (2003); Roberta L.
Kaaumoana, 54 ECAB 150 (2002); Terry R. Hedman, 38 ECAB 222 (1986).
8

20 C.F.R. § 10.5(x).

9

Id. See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman, supra note 7.

10

See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

11

See C.S., supra note 7; Sandra D. Pruitt, 57 ECAB 126 (2005).

5

December 2, 2014. The issue on appeal is whether appellant has met his burden of proof to
establish a recurrence of disability commencing July 3, 2010.
The Board finds that appellant failed to meet his burden of proof to establish a recurrence
of disability commencing July 3, 2010 as he failed to submit sufficient medical evidence
explaining how the claimed period of disability was causally related to his accepted work injury.
In support of his claim, appellant submitted work capacity evaluation forms dated
August 9, 2011, July 31, 2012, July 16, 2013, and July 21, 2014 completed by Dr. Alexander,
who diagnosed closed lumbar dislocation vertebra and closed thoracic lumbar dislocation.
Dr. Alexander indicated on the forms that appellant had permanent work restrictions precluding
his ability to return to work and that appellant should not have returned to the part-time,
sedentary employment position. He also responded to questions posed on a form noting that the
diagnoses were established in 1988 in connection with the August 25, 1988 work injury.
However, none of the form reports submitted by Dr. Alexander explain how appellant’s
conditions, restrictions, and disability were caused by the accepted employment injury.
Moreover, his medical reports did not contain a history of the work injury or a description of the
limited-duty job appellant had been performing prior to the claimed recurrence.12 Rather,
Dr. Alexander merely concluded without explanation that appellant was permanently disabled
from all work. It is well established that medical reports must be based on a complete and
accurate factual and medical background and medical opinions based on an incomplete or
inaccurate history are of little probative value.13 While Dr. Alexander found that appellant was
incapable of any type of work, he did not explain how his disability from work was caused by
the August 25, 1988 employment injury. The Board has found that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.14 The Board therefore finds that Dr. Alexander’s
submissions are insufficient to establish appellant’s recurrence claim.
The record also contains disability notes dated July 22, 2011 and July 22, 2014 from
Ms. Banks, a nurse practitioner. Nurse practitioners are not considered physicians as defined
under FECA.15 These reports are not probative medical evidence supportive of a claim for
federal workers’ compensation.
The record also contains a June 28, 2011 disability note indicating that appellant required
pulmonary rehabilitation and cardiac evaluation before being released to return to work.
However, this note attributes appellant’s disability to conditions not accepted by OWCP. Thus,
it is insufficient to establish his recurrence claim.

12

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
13

Douglas M. McQuaid, 52 ECAB 382 (2001).

14

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).
15

See 5 U.S.C. § 8101(2); M.B., Docket No. 12-1695 (issued January 29, 2013) (regarding nurse practitioners);
Lyle E. Dayberry, 49 ECAB 369, 372 (1998) (regarding physician assistants).

6

Appellant failed to submit sufficiently rationalized medical evidence establishing that his
disability on and after July 3, 2010 resulted from the residuals of his accepted injury.16 The
Board therefore finds that he has not met his burden of proof.17
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons set forth above, the Board finds the attorney’s arguments are not
substantiated.
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 failed to establish a recurrence of disability
commencing July 3, 2010, causally related to his August 25, 1988 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 2, 2014 is affirmed.
Issued: August 11, 2016
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

16

Cecelia M. Corley, 56 ECAB 662 (2005).

17

Tammy L. Medley, 55 ECAB 182 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEFENSE AGENCIES, DLA DISTRIBUTION
REGION EAST, Fort Belvoir, VA, Employer
__________________________________________

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Appearances:
Robert Boutselis, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1265
Issued: July 27, 2015

Oral Argument June 23, 2015

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 9, 2014 appellant, through his representative, filed a timely appeal from a
November 26, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on March 29, 2013.
FACTUAL HISTORY
On April 10, 2013 appellant, then a 32-year-old distribution process worker, filed a
traumatic injury claim (Form CA-1) alleging that on March 29, 2013 he sustained a right strained
Achilles while he was participating in the employing establishment’s wellness program at the
1

5 U.S.C. § 8101 et seq.

fitness center located on the employing establishment’s premises. He reported that he was
playing basketball with coworkers when he came down on his foot and sustained his injury at
2:00 p.m. When his condition did not improve, appellant sought treatment on April 3, 2013
where he was diagnosed with Achilles strain. He notified his supervisor on April 11, 2013.
Appellant stated that his normal work hours were Monday through Friday from 6:00 a.m. to 2:30
p.m. Her supervisor, Andrew Headley, controverted the claim stating that appellant was not in
the performance of duty.
By letter dated April 19, 2013, OWCP informed appellant that the evidence of record was
insufficient to support his claim. It afforded him 30 days to submit additional evidence and
respond to its inquiries.
By letter of the same date, OWCP requested that the employing establishment respond to
its inquiries as to appellant’s duties. It asked whether appellant was required to participate in a
Physical Fitness Plan (PFP), whether the employing establishment derived any benefit from his
participation in the activity, whether his participation violated any rules or regulations, whether
the injury occurred on the employing establishment’s premises during regular work hours,
whether the employing establishment provided leadership, equipment, or facilities, and requested
a copy of the employing establishment’s PFP.
In an April 12, 2013 witness statement, Jayson T. Johnson, a fellow coworker, reported
that he drove appellant to the fitness center on base for an hour of wellness and fitness. He stated
that he witnessed appellant injure himself while playing basketball on March 29, 2013.
In an April 16, 2013 narrative statement, appellant reported that he had previously injured
his left bicep on March 4, 2013 while lifting material at work but did not report the injury
because he did not want to jeopardize his employment. He stated that he had no disciplinary
actions in his career.
In support of his right ankle injury, appellant submitted medical reports documenting
treatment from Dr. Ernest R. Rubbo, a Board-certified orthopedic surgeon.
By letter dated April 24, 2013, Jenny Potts, appellant’s supervisor, responded to OWCP
questionnaire stating that appellant was not required to participate in the PFP program. She
noted that participation was voluntary by filling out the Defense Logistics Agency (DLA) Form
1939 for approval/authorization from his supervisor. Ms. Potts alleged that appellant did not
submit this form and was not participating in the PFP program. She further stated that the
employing establishment did not derive any benefit from appellant’s participation and the
program was voluntary. When asked if appellant’s participation violated any rules or
regulations, Ms. Potts stated that he was not authorized to leave the worksite at the time of the
injury, explaining that the injury occurred at 2:00 p.m. during his regular work hours. She noted
that the employing establishment did not provide leadership, equipment, or facilities to appellant
for the activity.
By letter dated May 21, 2013, the employing establishment controverted the claim
arguing that appellant was not in the performance of duty at the time he sustained his injury. It
provided a copy of the DLA Civilian Wellness and Fitness Program, which was implemented in

2

December 2012. The employing establishment noted that the program permitted eligible
employees to voluntarily participate in wellness/fitness program during the workday for a
maximum of one-hour a day, three times a week. Activities were expected to be cardiovascular
and aerobic in nature, addressing endurance, muscular strength, flexibility, and body
conditioning. The employing establishment enclosed a series of “Frequently Asked Questions”
which addressed some of the more common aspects of the program.
The employing establishment noted that a required condition of participation was that
employees must initiate a written request to their first level supervisor, including the projected
times, location, and nature of the fitness activity(ies) they would be doing. Additionally,
employees were required to maintain an appropriate accountability of time and attendance to
report their participation in the program. This included ensuring that the supervisor was aware of
specific times/dates that the employee was participating in wellness/fitness programs. Locally,
appellant’s organization had established a sign-out policy to meet this requirement. It stated that
review of the employing establishment’s administrative records indicated that appellant did not
complete the wellness/fitness program participation request as required, nor did he sign out of
the office on the date of injury. As such, appellant did not have express supervisory approval for
his work absence. The employing establishment further noted that a review of official time and
attendance records indicated that he was not on administrative leave connected to participation in
the wellness/fitness program on the date of injury. It stated that Ms. Potts was a knowledgeable
supervisor who had previously addressed the employing establishment concerns and provided an
official response to OWCP’s April 19, 2013 development letter. For the reasons above, the
employing establishment argued that appellant was not in the performance of duty when he was
injured playing basketball.
In support of its controversion, the employing establishment provided a blank unsigned
copy of a Request for Approval of Administrative Leave for Civilian Fitness Activities, a copy of
the DLA Civilian Wellness and Fitness Program Employer Guidelines Agreement Form,
Wellness and Fitness Frequently Asked Questions, a Memorandum for Employees regarding the
DLA Civilian Wellness and Fitness Program, and a Memorandum for Headquarters and DLA
Primary Level Field Activities for the DLA Fitness Program (Directive Type Memorandum
(DTM)-13-002).
The Memorandum for Headquarters and DLA Primary Level Field Activities for the
DLA fitness program describes the purpose of the program stating: This DTM establishes a
civilian wellness/fitness program which enhances the well-being of DLA employees and
contributes to a healthy and productive workforce. Full and part-time civilian employees may
voluntarily participate in civilian wellness/fitness program during the workday for a maximum of
one-hour a day, three times a week. The goal is to encourage and motivate employees to develop
a healthy lifestyle and enhance the quality of work.
The DTM goes on to describe procedures for participation in the fitness aspect of the
civilian wellness/fitness program, noting that prior to beginning the program, individuals must
initiate, via attachment, a written request to the first level supervisor, including the employee’s
projected times, location, and nature of the fitness activity. The procedures also provide that
within three workdays of receipt of the employee’s submitted request, the supervisors shall
provide the employee a response, unless the supervisor is on leave or temporary duty. With the

3

approval of their supervisor, employees may establish civilian fitness periods at a set time within
the workday. Employee requests to participate are maintained by their first level supervisor, if
approved. Copies of all agreements will be kept by supervisors, and organizations are to provide
a copy upon request to satisfy any reporting requirements. The DTM explains that DLA must
maintain appropriate accountability of time and attendance and will use information to report
participation and evaluate the agency civilian fitness/wellness program. Organizations must
ensure employees and timekeepers enter “LN” in EAGLE for the dates and times employees
participate in the program.
The Request for Approval of Administrative Leave for Civilian Fitness Activities notes
that employees are responsible for keeping their supervisors advised of when and where they are
participating in wellness/fitness programs. The document further notes that employees may be
granted a maximum of one-hour a day three times a week of administrative leave during duty
time for wellness/fitness programs.
By decision dated May 21, 2013, OWCP denied appellant’s claim finding that the
evidence of record failed to demonstrate that he sustained an injury on March 29, 2013 in the
performance of duty as alleged. It indicated that he was not performing regular duties or
activities incidental to his job and failed to provide documentation to participate in the
employing establishment’s optional wellness/fitness program.
On June 7, 2013 appellant requested an oral hearing before the Branch of Hearings and
Review.
Appellant responded to OWCP’s April 19, 2013 questionnaire and stated that he was
injured at 2:00 p.m. when he was participating in the employing establishment’s wellness/fitness
program on the base fitness center. He stated that the employing establishment’s wellness/fitness
program was encouraged to adopt a healthy lifestyle and did not require him to have a physical
examination. Appellant reported that following his injury, he could not put weight down on his
foot due to pain, but reported back to work as required at 2:15 p.m.
In support of his claim, appellant submitted an April 30, 2013 statement from Edward
Purdie, a fellow employee at DLA Distribution Susquehanna, PA. Mr. Purdie stated that his tour
of duty was Monday thru Friday from 6:00 a.m. to 2:30 p.m. and was assigned to the area known
as DK under the direct supervision of a coworker. He noted that he was one of many employees,
along with appellant, who participated in the employing establishment’s wellness/fitness
program. Mr. Purdie described the process for participation in the program, stating that
employees were required to fill out the Request for Approval of Administrative Leave for
Civilian Fitness Activities. He stated that to the best of his knowledge, employees from DK
were not required to sign-in or out in an established book and were not required to utilize the
Common Access Card (CAC) for tracking purposes. As of April 22, 2013, DK was assigned
new supervision under Doug Smith, who instructed employees to fill out OPM-71 Leave Request
Forms for tracking purposes due to appellant’s injury.
In a May 1, 2013 narrative statement, Shanan Johnson, a fellow employee, reported that
his immediate work area was known as DK which was supervised by Brian Taylor, a coworker,
through April 22, 2013. He stated that in order for employees to participate in the

4

wellness/fitness program, they were required to fill out the Request for Approval of
Administrative Leave and submit a schedule of the days, time, and place for participation.
Mr. Johnson did not recall any discussion about signing in and out within his work area or at the
fitness center, nor did he recall directive to use the CAC as a tracking method. He noted that he
would cover himself by noting his times on his Individual Standard Performance (ISP) sheet,
which was the employing establishment nonelectronic tracking method at that time, and that
information would be submitted electronically by work leaders or supervisors. Mr. Johnson
further stated that, since the arrival of their new supervisor Doug Smith, there had been a change
in the tracking procedure for the wellness/fitness program as employees were required to fill out
an OPM-71 Leave Request Form.
At the September 11, 2013 hearing, Robert Boutselis, appellant’s union representative,
asserted that the employing establishment did not conduct an investigation to determine whether
appellant submitted the appropriate documentation. He explained that appellant was injured
during work hours on the employing establishment premises, stating that ISP sheets documented
that he would be at the fitness center on March 29, 2013 from 1:15 p.m. to 2:15 p.m.
Mr. Boutselis further argued that no work leader challenged appellant who had documented on
his ISP sheets that he was participating in the wellness/fitness program. He noted that appellant
thought he was on administrative leave for the time spent for the wellness/fitness program but
that his time was actually covered under regular time.
By decision dated November 26, 2013, the Branch of Hearings and Review affirmed the
May 21, 2013 decision finding that appellant failed to establish that he was injured in the
performance of duty on March 29, 2013. It noted that the evidence of record indicated that he
did not complete the requisite form to participate in the wellness/fitness program. Mr. Headley
averred that appellant was not in the performance of duty and the employing establishment
maintained that appellant did not complete the form. While appellant argued that the employing
establishment was in error, he provided no evidence in support of his claim.2
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness, or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.3
The Board has interpreted the phrase while in the performance of duty to be the
equivalent of the commonly found requisite in workers’ compensation law of arising out of and
2

The Board notes that appellant submitted additional evidence after OWCP rendered its November 26, 2013
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
3

See 5 U.S.C. § 8102(a).

5

in the course of employment. In the course of employment deals with the work setting, the
locale and time of injury whereas, arising out of the employment, encompasses not only the work
setting but also a causal concept, the requirement being that an employment factor caused the
injury. In addressing this issue, the Board has stated that in the compensation field, to occur in
the course of employment, in general, an injury must occur: (1) at a time when the employee
may reasonably be said to be engaged in his or her master’s business; (2) at a place where he or
she may reasonably be expected to be in connection with the employment; and (3) while he or
she was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.4
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) the employing establishment,
by expressly or impliedly requiring participation, or by making the activity part of the service of
the employee, brings the activity within the orbit of employment; or (3) the employing
establishment derives substantial direct benefit from the activity beyond the intangible value of
improvement in employee health and morale that is common to all kinds of recreation and social
life.5
OWCP’s procedures address employing establishment PFP’s and provide that employees
enrolled in a PFP are in the performance of duty for FECA purposes while doing authorized PFP
exercise, including off-duty exercises. Under Part 2.804.18(c), Forms CA-1 that attribute an
injury to PFP activity must be accompanied by a statement from the employee’s supervisor
indicating that the employee was enrolled in the PFP and that the injury was sustained while the
employee was performing authorized exercises under the PFP.6
ANALYSIS
Appellant alleged that he sustained a work-related right Achilles injury on March 29,
2013 when he was playing basketball and participating in the employing establishment’s
wellness/fitness program. OWCP’s hearing representative denied his claim finding his injury
was not sustained in the performance of duty. The Board finds that this case is not in posture as
to whether appellant was in the performance of duty at the time of his March 29, 2013 injury.7
Appellant reported that his injury occurred at 2:00 p.m. during his regular work hours
while on base at the employing establishment’s fitness center. His injury did not occur during a
lunch or recreational period as a regular incident of his employment.8 Appellant further testified
4

Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

5

See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); A. Larson, The Law of Workers’ Compensation
§ 22.00 (2012).
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994).

7

D.M., Docket No. 13-1821 (issued March 26, 2014).

8

R.P., Docket No. 10-1174 (issued January 19, 2011).

6

that he submitted the required request form to participate in the wellness/fitness program to his
supervisor and had appropriately noted his times on his ISP sheets. He stated that he did not
receive administrative leave as expected for his time spent in the wellness/fitness program and
rather received regular time.
In its May 21, 2013 letter, the employing establishment argued that appellant’s position
did not require participation in PFP as the program was voluntary and he was not in the
performance of duty at the time of his injury. It stated that he was not enrolled in DLA’s PFP
nor was he injured while participating in a PFP. The employing establishment noted that the
program permitted eligible employees to voluntarily participate in wellness/fitness program
during the workday for a maximum of one-hour a day, three times a week of administrative
leave. A condition of participation in the program required employees to initiate a written
request to their first level supervisor, including the projected times, location, and nature of the
fitness activity(ies) they would be doing. Additionally, employees were required to maintain an
appropriate accountability of time and attendance to report their participation in the program
which included ensuring that the supervisor was aware of specific times/dates that the employee
was participating in fitness/wellness activities. The employing establishment stated that locally,
appellant’s organization had established a sign-out policy to meet this requirement. It noted that
he did not have express supervisory approval for his work absence as review of administrative
records indicated that he did not complete the fitness/wellness program participation request as
required, nor did he sign out of the office on the date of injury. Furthermore, the employing
establishment noted that a review of official time and attendance records indicated that appellant
was not on administrative leave connected to participation in the fitness/wellness program on the
date of injury.
The Board notes that the response by the employing establishment is insufficient to
determine whether appellant was participating in DLA’s wellness/fitness program.9 While the
employing establishment stated that review of official time and attendance records indicated that
appellant was not on administrative leave connected to participation in the wellness/fitness
program on the date of injury, it failed to submit these records in support of its claim. 20 C.F.R.
§ 10.118(a) provides that the employing establishment is responsible for submitting to OWCP all
relevant and probative factual and medical evidence in its possession or which it may acquire
through investigation or other means.10
The May 21, 2013 employing establishment letter also stated that appellant did not have
express supervisory approval for his work absence as review of administrative records indicated
that he did not complete the wellness/fitness program participation request as required, nor did
he sign out of the office on the date of injury. However, appellant provided statements from
Mr. Purdie and Mr. Johnson, fellow coworkers, who stated that participation in the program
required a Request for Approval of Administrative Leave Form and implementation of the
sign-in/sign-out policy did not begin until April 22, 2013, after appellant’s injury. Mr. Johnson
further stated that he would cover his participation in the wellness/fitness program by logging his
9

See J.L., Docket No. 12-947 (issued March 11, 2013). See generally C.C., Docket No. 13-2177 (issued April 2,
2014); E.A., Docket No. 11-1845 (issued March 14, 2012); Kenneth B. Wright, 44 ECAB 176, 181 (1992).
10

20 C.F.R. § 10.118(a).

7

times on his ISP sheet which would then be electronically submitted by work leaders or
supervisors. Appellant also stated that his ISP sheet documented that he would be at the fitness
center on March 29, 2013 from 1:15 p.m. to 2:15 p.m.
Under FECA, although it is the burden of an employee to establish his or her claim,
OWCP also has a responsibility in the development of the factual evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.11 Therefore, the case shall be remanded for further development of the
factual evidence regarding whether appellant was authorized to participate in the wellness/fitness
program at the time of his injury on March 29, 2013.12
On remand, OWCP should request the employing establishment provide copies of the
ISP sheets for appellant’s supervising area from the date of onset of the wellness/fitness program
through March 29, 2013, the date of appellant’s injury. It should further request the employing
establishment provide copies of appellant’s official time and attendance records from the date of
onset of the program through March 29, 2013 which identifies the number of hours worked and
type of leave used. OWCP should request the employing establishment provide any other
documentation used in its investigation to determine that appellant was not authorized to
participate in the wellness/fitness program, including the “sign-out sheets” it references and the
time and attendance records submitted under EAGLE for the period in question. The Board also
notes that the employing establishment’s April 24, 2013 response to OWCP’s development letter
indicated that appellant was not authorized to leave the worksite to participate in the program at
the time of injury, yet it failed to respond to OWCP’s inquiry as to the manner in which the rule
or regulation was enforced. OWCP should request further clarification from the employing
establishment regarding appellant’s alleged violation of the employing establishment rules or
regulations and the manner in which they were enforced. After such further development as it
deems necessary, it should issue an appropriate decision on this matter.13
CONCLUSION
The Board finds that this case is not in posture for decision.

11

Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).

12

Colleen A. Murphy, Docket No. 01-1319 (issued November 6, 2002).

13

S.D., Docket No. 13-90 (issued August 22, 2013).

8

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: July 27, 2015
Washington, DC

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

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

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

9