United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Memphis, TN,
Employer
__________________________________________

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

Docket No. 14-874
Issued: July 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 7, 2014 appellant filed a timely appeal from a November 1, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed from the last merit decision dated June 27,
2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 1, 2013 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 12, 2013 appellant, then a 59-year-old mail handler, filed a traumatic injury
claim alleging that on March 7, 2013 she sustained lower back pain due to unloading trucks.
In a March 7, 2013 treatment note, Dr. Abdullah Baig, an examining Board-certified
internist, stated that appellant was seen for chronic back pain and was released to light-duty
work.
Dr. Arsen H. Manugian, a treating Board-certified orthopedic surgeon, reported on
April 2, 2013 that appellant was seen that day for a lumbar complaint. He related that on
March 7, 2013 she reported an acute onset of pain due to pushing a container of mail weighing
approximately 300 pounds. Dr. Manugian noted that in October 2012 appellant was informed
that she had degenerative arthritis. Physical examination findings revealed a hyperlordotic
lumbar spine, diffuse tenderness over the lower lumbar area and restricted left-side rotation,
extension and lateral flexion. A review of a lumbar x-ray showed multilevel degenerative
changes. Dr. Manugian diagnosed lumbar degenerative disc disease with lumbar radiculopathy.
On April 9, 2013 Dr. Manugian diagnosed low back discogenic pain and lumbar
radiculopathy. He provided physical findings and noted an injury date of March 7, 2013.
Dr. Manugian advised that appellant was capable of working with work restrictions.
In a May 16, 2013 letter, OWCP informed appellant that initially her claim had been
considered a minor injury so that payment of a limited amount of medical expenses had been
administratively approved without adjudicating the merits of the claim. Appellant was advised
that her claim had been reopened for consideration and that the evidence of record was
insufficient to support her claim. OWCP advised her as to the medical and factual evidence
required to establish her claim. Appellant was given 30 days to provide this information.
In a May 21, 2013 report, Dr. Manugian stated that appellant was seen for lumbar
complaints and noted a March 7, 2013 injury date. Appellant related that she continued to have
back pain and worked in a modified-job position. The physical examination revealed moderate
back motion restriction and tenderness over the anterior thigh and left greater trochanter.
Dr. Manugian diagnosed lumbar radiculopathy and lumbar degenerative disc disease. He noted
that appellant could work with restrictions as previously indicated.
By decision dated June 27, 2013, OWCP denied appellant’s claim. It found that the
medical evidence was insufficient to establish that her back condition was causally related to the
March 7, 2013 incident.
On July 5, 2013 OWCP received an April 10, 2013 attending physician’s report (Form
CA-20) from Dr. Manugian and an occupational disease claim form signed by appellant on

2

June 20, 2013.3 Dr. Manugian diagnosed degenerative lumbar disc disease and lumbar
radiculopathy. He listed an injury date of March 7, 2013 and noted that appellant injured herself
while pushing mail containers weighing more than 300 pounds. Dr. Manugian checked “yes” to
the question of whether the diagnosed condition was caused or aggravated by her employment.
In a July 30, 2013 report, Dr. Manugian noted the history of the injury. He diagnosed
discogenic low back pain, lumbosacral spondylosis and lumbar degenerative disc disease.
Dr. Manugian stated that appellant’s degenerative changes were not caused by the March 7, 2013
incident, but that the incident had aggravated her preexisting lumbar condition.
In a form dated October 21, 2013, appellant requested reconsideration. She noted the
duties she performed every day and that Dr. Manugian checked “yes” on a Form CA-20 as to
whether her duties aggravated her condition.
By decision dated November 1, 2013, OWCP denied reconsideration. It found that the
evidence submitted to support the request was irrelevant, repetitious and cumulative.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.7
ANALYSIS
On October 21, 2013 appellant disagreed with OWCP’s June 27, 2013 decision, finding
that her lumbar back condition had not been caused or aggravated by the March 7, 2013 work
incident. She requested reconsideration. The Board finds that appellant did not establish that
3

In the June 20, 2013 occupational disease claim, appellant attributed her degenerative disc disease to her
employment and that her supervisor filled out the wrong claim form. She indicated that she first became aware of
the condition on April 2, 2013 but was aware of its connection to her employment on March 7, 2013.
4

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
5

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
6

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

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OWCP erroneously applied or interpreted a specific point of law. Moreover, she did not advance
a relevant legal argument not previously considered.
Appellant submitted an April 10, 2013 CA-20 form report and a July 30, 2013 report
from Dr. Manugian. The CA-20 report reiterated the diagnosed degenerative lumbar disc disease
and lumbar radiculopathy and described the employment incident that appellant was injured at
work due to pushing a heavy container of mail on March 7, 2013. Dr. Manugian checked “yes”
that appellant’s injury was caused or aggravated by the March 7, 2013 incident. In the July 30,
2013 report, he informed her that, while her degenerative disc disease had not been caused by the
March 7, 2013 work incident, the incident had aggravated the condition. The Board finds that
this evidence is duplicative of the prior reports submitted by Dr. Manugian. The reports are
essentially repetitious of materials previously submitted by Dr. Manugian and reviewed by
OWCP. As Dr. Manugian’s reports are duplicative of his earlier reports, the Board finds that it is
insufficient to reopen appellant’s claim for further merit review.8
The Board finds that appellant did not submit arguments or evidence showing that
OWCP erroneously applied or interpreted a specific point of law; advanced a relevant legal
argument not previously considered; or constituted relevant and pertinent new evidence not
previously considered by OWCP. Appellant did not meet any of the regulatory requirements and
OWCP properly declined to reopen her claim for further merit review.9
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

8

Eugene F. Butler, 36 ECAB 393 (1984).

9

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630
(2006) (when an application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a
review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 1, 2013 is affirmed.
Issued: July 29, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shamokin Dam, PA, Employer
__________________________________________

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

Docket No. 09-1103
Issued: February 26, 2010

Case Submitted on the Record

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

JURISDICTION
On March 12, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated August 22, 2008 and February 20, 2009, denying
her emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On February 20, 2008 appellant, a 50-year-old window and distribution clerk, filed an
occupational disease claim alleging a worsening of her preexisting depression on January 12,
2007 due to conditions of her federal employment. She stated that her employer caused her
severe mental anguish by placing unnecessary demands on her. Appellant stopped work on
November 8, 2007 and did not return.

In a February 20, 2008 statement, appellant alleged that management verbally and
emotionally abused her and intentionally made extreme demands and imposed extra duties on
her that aggravated her health and her previously diagnosed post-traumatic stress disorder
(PTSD). She noted that she suffered from severe fatigue and exhaustion as a result of having
undergone a bone marrow transplant for nonHodgkins lymphoma in 1995 and that she worked
part time because of her weakened immune system and her endurance capability. Appellant
stated that her managers were aware of her disability.
Appellant indicated that in April 2006, she began working full time “because of a
full time vacancy at my office and I was the only person available to work.” She alleged that the
mail volume tripled at her location during this period of time; due to address changes associated
with local 911 services, and that she performed the duties of two full-time people. Appellant
repeatedly requested help from the officer in charge, but the requests were denied and her
managers showed no concern and blatantly disregarded her requests. She alleged that the
managers in Harrisburg were outwardly abusive when she telephoned them for help, thereby
creating a hostile work environment. The managers made extreme demands on appellant and
made no effort to find personnel in the area to work. Phil Maurosi told her that part-time flexible
(PTF) were more or less expendable, stating, “A PTF, is a PTF, is a PTF.” Appellant stated that
she filed a grievance in order to convert the part-time clerk position to a full-time position and
then sustained her own grievance once she became a manager. Although she allegedly filed the
grievance on the advice of the union president, she was told by management that she broke a rule
by sustaining it and was removed from her job for misconduct. Appellant contended that her
removal was “absolutely unfair and unethical” and the accusations of misconduct were all
erroneous, “since I made every effort to perform my job according to all instructions I received”
and was unaware that she violated any rules. She stated that the employing establishment’s
actions caused severe anxiety and depression.
On February 25, 2008 the employing establishment controverted appellant’s claim. It
contended that her removal for cause on October 2, 2007 was an administrative act and,
therefore, not compensable.
Appellant submitted medical reports from Patricia Horton, Ph.D, a clinical psychologist.
On February 13, 2008 Dr. Horton diagnosed adjustment disorder, with depression and anxiety
and some PTSD. She indicated that appellant’s depression was, in part, due to a “previous work
stress situation.” The record contains reports for the period from October 23, 2007 through
February 19, 2008 from Rochelle Lenker, a physician’s assistant, who treated appellant for
backache and left knee pain and hypertension.
On March 21, 2008 the Office informed appellant that the evidence submitted was
insufficient to establish her claim. It advised her to describe in detail the employment-related
conditions or incidents which she believed contributed to her claimed condition and a detailed
narrative medical report from a psychiatrist that explained how factors of her federal
employment duties contributed to the condition diagnosed. The Office also asked appellant to
provide any evidence she possessed, which demonstrated that her employer erred or acted
abusively in the administrative matters.

2

In an internal memorandum dated April 30, 2007, Harrisburg Operations Manager
Michael Becker provided a synopsis of a grievance settlement involving appellant, “the PTF
clerk in Shamokin Dam.” He stated that in 2006, she was made the officer in charge after it was
determined that the postmaster vacancy was going to be longer than initially anticipated. During
this time, appellant received a grievance requesting the conversion of a “PTF” to “FTR,” which
she sustained. Mr. Becker noted that the postmaster had historically worked approximately four
hours per day. He observed that, as the position appellant agreed to make full time was her own
position, she had “in essence used her federal position for personal gains.”
In an August 31, 2007 letter to Gina Meade, appellant related that a postal inspector had
interrogated her about a customer complaint regarding a certified letter that she had allegedly
handled improperly. She stated that she had received a letter from a disgruntled contractor.
Appellant acknowledged that she opened the letter, read the contents, resealed it and mailed it
back to the sender. She indicated that she was not aware at the time that she had acted
improperly.
In a letter dated September 8, 2007, appellant complained to the employing establishment
that the new postmaster was cutting her hours due to low volume and was performing tasks
formerly assigned to her. She noted that she had worked as a full-time clerk for six months after
the postmaster was transferred to another office in April 2006. Appellant became the officer-incharge and worked full time until April 2007, when she relinquished the position because she did
not have proper staffing and made the decision to go back to being a PTF. She alleged that she
had often asked for help but never received any.
In an undated letter to the employing establishment, appellant advocated for the
conversion of her position from part time to full time. She stated that she had been working as
officer in charge for several months and full-time clerk prior to the current assignment.
Appellant argued that the bylaws of the national agreement called for the conversion of the
position to full time after an employee has worked full time for six months. She also contended
that the establishment of a full-time clerk position would alleviate confusion and delays caused
by changes in the mail due to the addition of “911” services, by allowing the mail to be
transported to the correct location and would provide needed support to accommodate an
increased volume of mail in an expanding community.
The record contains a copy of a November 7, 2007 Equal Employment Opportunity
(EEO) complaint in which appellant alleged that the employing establishment retaliated against
her for sustaining her grievance, which approved the conversion of her position from part time to
full time, by first reducing her hours and then by terminating her employment. Appellant also
alleged discrimination based on sex.
Appellant submitted copies of memorana to the employing establishment, dated
December 28, 2006 to April 13, 2007, requesting additional personnel, in the form of a relief
clerk or postmaster, at the Shamokin Dam location, as well as complaints about general
operating procedures.
In a July 23, 2007 statement made to a postal inspector, appellant indicated that her
decision to convert her position from part time to full time was based on the extreme increase in

3

the volume of mail at that time, due to 911 changes. All of the decisions made in her capacity as
officer in charge were discussed with and made upon the recommendation of, the union
president.
The record contains witness statements from postal customers Yvonne Wersen and
Barbara Adams. Appellant reportedly told Ms. Wersen that she was overwhelmed by the “911”
changes and was experiencing stress, which aggravated her immune system. On April 9, 2008
Ms. Adams stated that she was aware that appellant’s workload increased with the onset of the
“911” address changes. Appellant was frustrated about her inability to keep up with the work
and the fact that the Office was understaffed. On April 21, 2008 Marilyn Beattie, a cleaning
contractor for the employing establishment, stated that appellant was short-staffed and worked
long hours, with no back-up system. She indicated that appellant single-handedly ran an office
that previously had a full-time postmaster and a part-time clerk and that her requests for help
were denied.
In an undated statement, appellant reiterated her claim that she was overworked and
mistreated by management during her tenure at Shamokin Dam. When the former postmaster
transferred to another office, appellant assumed her responsibilities. Appellant managed the
office by herself and was extremely overworked because of the mail changes in the area. When
she requested additional personnel, she was told that “nobody was available” or that there was
not enough space. Appellant was informed by Ms. Meade that according to union agreement, if
a part-time clerk works full time for six continuous months, the part-time clerk qualifies for a
conversion to full time. She reportedly did work six months as a level 06 clerk and filed a
grievance with the union president to establish another full-time position at the office. Appellant
sustained the grievance shortly after she became the officer-in-charge. She was unaware of any
wrongdoings and her intentions were to have adequate staffing. Appellant felt helpless,
frustrated with and totally used by her managers because they were so uncooperative and
unwilling to help with the situation; so, she resigned as the office manager. After her
resignation, her managers became even more abusive and she was told that clerks were
expendable. Appellant was interrogated by a postal inspector as to why she sustained the
grievance and was reprimanded and interrogated by Mike Wolfberg about customer complaints.
Mr. Wolfberg inquired as to why the back door was unlocked, why she failed to respond to a
customer when he wanted his mail before the office was open and about her use of the office
computer. Appellant stated that she believed that the employing establishment was trying to
eliminate her position and “get rid of [her].” As a result of the establishment’s actions, she
became severely depressed and withdrawn. Appellant alleged that, in retaliation for her
resignation, management put her under a microscope and charged her with three counts of
misconduct and unsatisfactory work performance in a letter of removal. She became extremely
overworked and overburdened because of the changes in her office. Appellant’s work schedule
went from 25 hours a week to over 50 hours. She was suffering from extreme depression and
developed physical problems, as a result of the working conditions and the demands placed on
her by her employer. Appellant alleged that she was not given a reason for the denial of her
application for the postmaster position.
On April 23, 2008 the employing establishment responded to appellant’s allegations. The
staffing matrix at Shamokin Dam was one full-time postmaster and one part-time flexible clerk
for lunch relief, Saturday work, occasional holiday work and filling in for the postmaster when

4

he is on leave. Appellant was part time because there was no other position available in this
small office. In order to obtain a full-time position, she would have to transfer to another office
or apply for a promotion into a full-time position. Both of these were available options. The
employing establishment indicated that demands and duties were not extreme and were the same
as assigned to other postmasters and officers in charge.
The employing establishment contended that appellant’s removal for cause was an
administrative act and, therefore, not compensable, as there was no evidence of error or abuse.
Phil Marousi, Acting Manager, Post Office Operations at the time of her removal, stated that
proper procedures were followed during the application process for Shamokin Dam postmaster
and that the hiring review committee did not list her as one of the recommended applicants.
The employing establishment asserted that appellant’s hours were not improperly
reduced. In an office the size of Shamokin Dam, once a PTF reports to work on a scheduled day,
she is guaranteed a minimum of two hours work. PTF hours fluctuate with the workload and can
be as little as 2 hours a week or as much as 56 hours or more, in a week. Appellant’s hours were
reduced from four hours (two in the morning and two for lunch relief) to two hours per day,
because the morning workload did not require two employees to sort the mail.
The employing establishment reported that the mail volume did not triple, as alleged, due
to the “911” changes. In fact, a reduction in mail volume resulted from the automation of the
P.O. Box mail and an increase in direct delivery service to residences from a neighboring
employing establishment, therefore, the time required by postal employees to handle mail in the
office was lessened.1
Mr. Marousi disputed appellant’s claim that she was performing the work of two
full-time people. He stated that the staffing authorized for Shamokin Dam and other employing
establishment of similar size and revenue, was one full-time Postmaster and one PTF Clerk and
the office has never been authorized 16 hours a day for permanent staffing. Mr. Marousi had
explained to appellant that, as a PTF clerk, she was not guaranteed hours and that her schedule
was flexible, dependent upon mail volume fluctuations. He stated that he was not aware of
appellant’s previous health issues.
Mr. Wolfberg, acting Postmaster of Shamokin Dam, advised that he was aware of
appellant’s previous health issues, but noted that she never indicated that she was unable to
perform her assigned duties or that the duties were affecting her in any way. Further, appellant
did have lunch relief and she did at times provide personnel to cover her scheduled time off.
Mr. Wolfberg said that she was working Saturday also and appeared happy to get the overtime.
“[Appellant] did not complain.” Mr. Wolfberg advised that the volume did not triple; rather, it
dropped. He estimated about 50 P.O. Box customers were lost from Shamokin Dam to
Selinsgrove as new rural deliveries. The creation of the rural deliveries for some folks in
Shamokin Dam further reduced workload, in that their mail became automated. That is, letter

1

Mr. Marousi explained that the mail for new residential deliveries resulting from the “911” changes would not
be sorted at or picked up from Shamokin Dam, but from a neighboring employing establishment. That would be a
reduction, not an increase in mail volume.

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mail was sorted into P.O. box order, so that the time it took to place this mail into the P.O. boxes
was significantly reduced.
The record contains an October 2, 2007 Notice of Removal informing appellant of the
employing establishment’s intent to terminate her employment effective November 10, 2007 for
the following violations: sustaining a grievance to convert her PTF clerk position to a full-time
position; sustaining a grievance to approve an award of compensation for all hours that she was
allegedly performing bargaining unit work while working as a PFT clerk; abusing her position as
a postal employee by opening, examining and resealing certified mail and returning it to sender
without additional postage; and assigning herself a free P.O. box in Shamokin Dam when she
was not a resident of Shamokin Dam. The employing establishment determined that appellant’s
actions were in violation of the 18 U.S.C. § 208(a) and the Standards of Conduct, 5 C.F.R. Part
2635 because she participated in an official capacity in a particular matter that affected her
personal interests. She violated the provisions of the Domestic Manual Manual (DMM) by
refusing mail after it had been opened. Further, appellant improperly awarded herself a free P.O.
box.
In an undated letter, appellant informed the union representative that “management was
breathing heavily down [her] neck and trying to reduce [her] hours at Shamokin [Dam]
[employing establishment.]” She stated that she had no desire to work in other facilities.
Appellant stated, “Just because someone new steps in as OIC, there should be no drastic changes
done that would cause a disruption in the office.” She disagreed with management’s suggestion
that the officer in charge perform clerk duties, because she could not “see how one person
working here can wait on the window (which is busy) and also distribute mail.” Appellant asked
the representative to “tell management to back off and leave [her] alone.”
Appellant submitted a February 27, 2007 report from Dr. John L. Gerdes, a clinical
psychologist, who diagnosed depressive disorder.
In an August 22, 2008 decision, the Office denied appellant’s claim on the grounds that
she had not established a compensable employment factor.
On August 25, 2008 appellant, through, counsel requested an oral hearing. At the
December 8, 2008 hearing, she testified that she was required to work more than 25 hours per
week; that she was handling the workload of two people; and that her requests for assistance
were denied. Appellant stated that the employing establishment’s statement to the effect that
there was no increase in mail volume due to “911” changes was false. She represented that the
number of parcels increased from 20 per day to between 75 and 80 per day, plus mail delivery.
Appellant alleged that the establishment retaliated against her by reducing her hours and that she
was unfairly denied the postmaster position.
Appellant submitted additional medical evidence, including a February 26, 2007 report
from Dr. Gerdes, who diagnosed depression; a February 27, 2007 report from Dr. Hesham I.
Nagi, a treating physician, who diagnosed depression due to stress at work; and a December 14,
2007 report from Dr. Elana T. Bloom, a Board-certified internist, who treated appellant for issues
related to nonHodgkins lymphoma.

6

The union filed a grievance on appellant’s behalf to protest her removal from
employment. After the employing establishment denied the grievance, the union invoked
arbitration. In a November 15, 2008 opinion and award, the arbitration panel found that the
employing establishment had provided appellant with the due process required, had complied
with the procedural requirements of the National Agreement, had proved appellant guilty of the
charges against her and had established that removal was an appropriate penalty for her proven
misconduct. The panel found that appellant was guilty of improperly issuing herself and
approximately 100 customers free P.O. boxes, in violation of applicable regulations; improperly
opening a letter addressed to her and then returning it as refused, without applying return
postage; and sustaining two grievances in which she had a personal interest.
On December 30, 2008 the employing establishment responded to the hearing transcript.
It contended that appellant’s testimony was contradictory, as she first stated that she was
mistreated by her coworkers, yet later testified that she worked alone. The employing
establishment also noted that appellant’s claimed perception that the work was beyond her
capacity to perform was not based on an accurate factual scenario. It stated, “The reality is that
the workload declined.”
By decision dated February 20, 2009, the Office hearing representative affirmed the
August 22, 2008 decision, finding that appellant had not established a compensable factor of
employment.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that he has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.2
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 illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of his work or
his fear and anxiety regarding his ability to carry out his work duties.3 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
2

D.L., 58 ECAB 667 (2006).

3

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

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not being permitted to work in a particular environment or to hold a particular position.4 An
employee’s emotional reaction to an administrative or personnel matter is generally not covered
by workers’ compensation. The Board has held, however, that error or abuse by the employing
establishment in an administrative or personnel matter may afford coverage.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
The Board has held that allegations, alone, by a claimant are insufficient to establish a
factual basis for an emotional condition claim but must be substantiated by probative evidence.7
Perceptions and feelings alone are not compensable. To establish entitlement to benefits, a
claimant must establish a basis in fact for the claim by supporting her allegations with probative
and reliable evidence. When the matter asserted is a compensable factor of employment and the
evidence of record establishes the truth of the matter asserted, the Office must base its decision
on an analysis of the medical evidence.8
It is well established that an investigation is generally related to the performance of an
administrative function by the employer and is not a compensable factor absent evidence of error
or abuse.9
With regard to claims under the Act, the Board has held that the determination of an
employee’s rights or remedies under other statutory authority does not establish entitlement to
benefits under the Act. Under the Act, to establish disability, an employee’s injury must be
shown to be causally related to an accepted injury or accepted factors of his or her federal
employment. For this reason, the determinations of other administrative agencies or courts,
while instructive, are not determinative with regard to disability arising under the Act. Findings
4

Id.

5

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
6

D.L., supra note 2; T.G., 58 ECAB 189 (2006); C.S., 58 ECAB 137 (2006); A.K., 58 ECAB 119 (2006).

7

Charles E. McAndrews, 55 ECAB 711 (2004); see also 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 to determine whether
or not the evidence established such allegations).
8

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

9

Id.

8

made by the MSPB or EEO Commission may constitute substantial evidence relative to a claim
to be considered by the Office and the Board.10
ANALYSIS
Appellant alleged that management verbally and emotionally abused her and intentionally
made extreme demands and imposed extra duties on her that aggravated her health and her
previously diagnosed PTSD. The Board finds that appellant failed to establish a compensable
factor of employment.
Appellant has alleged that she experienced an emotional reaction to certain employment
duties which, if established, could constitute a compensable factor of employment under the
Act.11 However, she has failed to provide a factual basis for her claim. Appellant alleged that
she was overworked due to a tripling in mail volume resulting from “911” changes and that she
began performing the work of two employees when the postmaster transferred from the
Shamokin Dam location. She asserted that her hours increased from 25 to more than 50 hours
per week and the number of parcels grew from 20 to between 75 and 80 per day, plus mail
delivery. Appellant claimed that she was only employee at her location and that she was given
no relief for lunch or days off.
The employing establishment controverted appellant’s claim that the mail volume tripled
due to the “911” changes, stating that the automation of the P.O. Box mail, plus an increase in
direct delivery service to residences from a neighboring employing establishment, actually
resulted in a reduction in mail volume. The employing establishment disputed that appellant was
performing the work of two full-time people, noting that the office had never been authorized
16 hours a day for permanent staffing. The acting Postmaster advised that appellant never
indicated that she was unable to perform her assigned duties or that the duties were affecting her
in any way; that she did have lunch relief; and he did at times provide personnel to cover her
scheduled time off. He stated that the volume did not triple, but dropped, estimating that about
50 P.O. Box customers were lost from Shamokin Dam to Selinsgrove as new rural deliveries.
The only evidence submitted by appellant in support of her allegations consisted of witness
statements from postal customers, to whom she apparently related her complaints. As their
statements were based upon appellant’s representations, rather than on objective facts, they do
not constitute probative evidence. Moreover, they do not address the specifics of any allegations
raised by appellant. The Board finds that there is insufficient evidence to establish appellant’s
allegations regarding her workload as factual. Therefore, they are not deemed compensable
factors of employment.
Appellant alleged that the employing establishment unfairly terminated her employment
based on erroneous accusations of misconduct; blatantly disregarded her requests for additional
personnel; unfairly denied her application for the postmaster position, without explanation;
reduced her hours in retaliation for resigning her post; inappropriately “put her under a
microscope “ and “breathed down her neck;” and unfairly subjected her to an investigation. The
10

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

11

See supra note 3 and accompanying text.

9

Board finds that these allegations relate to administrative or personnel matters, unrelated to her
regular or specially assigned work duties and, therefore, do not fall within the coverage of the
Act.12 Although the handling of disciplinary actions and leave requests, the assignment of work
duties and the monitoring of work activities are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.13 However, the Board
has also found that an administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.14 In this case, appellant has
not submitted sufficient evidence to show that the employing establishment committed error or
abuse with respect to administrative matters.
Appellant was terminated for cause. Although she contended that she should not have
been terminated because she acted in good faith and was unaware of any wrongdoing, the
evidence of record establishes that appellant issued herself and approximately 100 customers free
P.O. boxes, in violation of applicable regulations, improperly opened a letter addressed to her
and then returning it as refused, without applying return postage and sustained two grievances in
which she had a personal interest. Appellant has not submitted any evidence to refute these
charges. The Board notes, the arbitration panel found that the employing establishment had
proved her guilty of the charges against her and had established that removal was an appropriate
penalty for her proven misconduct. While the determinations of other administrative agencies or
courts, while instructive, are not determinative with regard to disability arising under the Act,
findings made by these agencies may constitute substantial evidence relative to a claim to be
considered by the Office and the Board.15 The Board finds that the employing establishment did
not err in terminating appellant for cause.
Appellant alleged that the employing establishment blatantly disregarded her requests for
additional personnel; unfairly reduced her hours; and improperly denied her application for the
postmaster position. She stated that her supervisor “put her under a microscope,” inquiring as to
why the back door was left unlocked, why she failed to respond to a customer when he wanted
his mail before the office was open and about her use of the office computer. The employing
establishment explained that the workload reduction at Shamokin Dam did not warrant additional
personnel. Further, appellant’s hours as a PTF, which were not guaranteed and fluctuated with
the workload, were reduced from four hours to two hours per day, because the morning workload
did not require two employees to sort the mail. She provided no evidence to support her
contention that her supervisor reduced her hours in retaliation for her resignation as officer in
charge. The employing establishment also stated that proper procedures were followed during
12

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath,
44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 126667 (1988). See also Jimmy B. Copeland, 43 ECAB 339 (1991) (An investigation by the employing establishment is
an administrative matter).
13

Id.

14

See Richard J. Dube, 42 ECAB 916, 920 (1991).

15

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

10

the application process for Shamokin Dam postmaster and that that the hiring review committee
did not list appellant as one of the recommended applicants. Additionally, appellant has
provided no evidence that management’s monitoring of her work activities was unreasonable.
Therefore, there is no evidence of error or abuse with regard to these administrative matters.
Appellant has presented no evidence of administrative error or abuse in the investigation
of actions taken by appellant. The employing establishment’s decision to investigate allegations
that she issued herself and approximately 100 customers free P.O. boxes, in violation of
applicable regulations, improperly opened a letter addressed to her and then returning it as
refused, without applying return postage and sustained two grievances in which she had a
personal interest, was not only reasonable, but appropriate.
Appellant alleged that her managers were verbally and emotionally abusive; that they
were outwardly abusive when she telephoned them for help and created a hostile work
environment; and that Mr. Maurosi told her that PTFs were expendable. While the Board has
recognized the compensability of verbal abuse in certain situations, this does not imply that
every statement uttered in the workplace will give rise to coverage under the Act.16 General
allegations that management treated appellant unfairly and created a hostile environment are
insufficient to establish that harassment did, in fact, occur. As noted, the employing
establishment’s assignment of personnel, absent error or abuse, is not compensable.
Additionally, while Mr. Maurosi’s statement that PTFs are expendable may have offended
appellant, it does not rise to the level of abuse. Thus, the Board finds that appellant has not
established a compensable employment factor under the Act with respect to these allegations of
harassment and verbal abuse..
Appellant asserted her belief that the management was trying to eliminate her job and
“get rid of her.” She also stated that she felt helpless, frustrated and totally used by management.
The Board finds that these feelings must be considered self-generated. Further, appellant
disagreed with management’s decision that postmasters should perform the duties of clerks,
thereby reducing the need for additional employees. The Board has held that an employee’s
dissatisfaction with perceived poor management constitutes frustration from not being permitted to
work in a particular environment and is, therefore, not compensable under the Act.17
Consequently, appellant has not established a compensable factor of employment with regard to
these matters.
As appellant has not established a compensable factor of employment, she has failed to
meet her burden of proof to establish that she sustained an emotional condition in the
performance of duty.18

16

See Leroy Thomas, III, 46 ECAB 946, 954 (1995).

17

See Cyndia R. Harrill,55 ECAB 522.

18

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496 (1992).

11

CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 20, 2009 and August 22, 2008 are affirmed.
Issued: February 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
TROOP SUPPORT AGENCY, Fort Sill, OK,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-634
Issued: February 16, 2011

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 December 18, 2009 appellant filed a timely appeal from the June 26, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his recurrence claim in File
No. xxxxxx397 and the August 14, 2009 nonmerit decision denying his request for
reconsideration. He also appealed the Office’s August 13, 2009 nonmerit decision in File No.
xxxxxx587 denying his request for reconsideration on the grounds that it was untimely and failed
to establish clear evidence of error. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that he sustained a recurrence of
disability on March 3, 1980 due to the accepted September 23, 1975 traumatic injury; and
(2) whether the Office properly refused to reopen his claim for reconsideration of the merits in
File No. xxxxxx397 pursuant to 5 U.S.C. § 8128(a); and (3) whether the Office properly refused
to reopen his claim for reconsideration of the merits in File No. xxxxxx587 on the grounds that
the request was untimely and failed to establish clear evidence of error.

FACTUAL HISTORY
On September 23, 1975 appellant, then a 37-year-old stock clerk, sustained an injury to
his back while lifting a steel conveyor belt.1 On March 10, 1980 he filed a traumatic injury claim
for the injury.2 The case was accepted for right lumbar muscle strain on April 1, 1980 and closed
on that same day.3
On October 16, 1984 appellant submitted a Form CA-2a, alleging that he had sustained a
recurrence of disability on March 3, 1980. He allegedly experienced headaches and back pains,
which radiated down his legs. When appellant stood, his legs gave out. His work activities,
which included using a knife to open boxes, caused pain in his back and the side of his neck and
arm. Appellant also complained of a cyst in his lower back.
Appellant submitted an April 14, 1980 report from Dr. Steven D. Rowlan, a Boardcertified orthopedic surgeon, who stated that appellant had a straight spine with minimal
tenderness, noting that he had a bone cyst over the right sacrum. Dr. Rowlan indicated that
appellant was interested in relating the cyst to his previous compensation claim.
The record contains September 10, 1980 hospital records, signed by Brent Keyser, a
fourth-year medical student, who diagnosed organic brain syndrome. The record also contains
hospital records pertaining to appellant’s treatment for a mental health condition.
Appellant submitted a January 23, 1985 attending physician’s report from Dr. Jerry M.
Martin, a chiropractor, who noted that appellant had sustained an injury on September 23, 1975
while lifting a steel conveyor belt. Dr. Martin diagnosed acute, severe lumbar sprain/strain and
cervicocranial syndrome. He indicated that the period of disability was from January 11, 1984 to
the date of his report.
Appellant submitted a January 25, 1985 report from Dr. S.C. Jack, a Board-certified
orthopedic surgeon, who diagnosed “cyst of lower sacrum due to unknown cause.” In response
to a question as to whether he believed the diagnosis was in any way related to the history
provided by appellant, he stated that the cause was unknown and that appellant’s wife claimed
the disability was due to his workers’ compensation case. Dr. Jack noted that appellant was
withdrawn and seemed to have psychiatric problems. He also noted that he did not treat
appellant at the time surrounding his accepted injury.

1

This case has been before the Board on prior appeal. By decision dated October 7, 2005, the Board dismissed
appellant’s appeal at his request. Docket No. 05-1682 (issued October 7, 2005). On November 30, 2006 the Board
dismissed an appeal, finding that appellant did not intend to appeal a decision in this case. Docket No. 06-1338
(issued November 30, 2006). In a March 23, 2007 order, the Board dismissed appellant’s appeal, again finding that
he had not intended to file an appeal in this case. Docket No. 07-0684 (issued March 23, 2007). In a March 5, 2009
order, the Board set aside an August 12, 2008 decision denying reconsideration of a June 27, 2007 decision denying
appellant’s recurrence claim. The Board remanded the case to the Office for merit review. Docket No. 09-18
(issued March 5, 2009).
2

OWCP File No. xxxxxx397.

3

Appellant also sustained injuries to his head and left shoulder on April 26, 1978. His traumatic injury claim
(File No. xxxxxx587) was accepted for hematoma of the scalp and contusion of the left shoulder.

2

In a June 11, 1985 letter, the Office informed appellant that the evidence submitted was
insufficient to establish that he had sustained a recurrence of disability causally related to the
original September 23, 1975 injury. It advised him to provide medical evidence containing a
diagnosis, examination findings and an opinion explaining how his current condition was related
to the accepted injury.4
Appellant submitted a June 19, 1985 report from Dr. Robert Simpson, a treating
physician, who stated that appellant was experiencing back pain radiating to both buttock areas
and the lower extremities. Dr. Simpson related appellant’s report of his 1975 injury in which he
hit and strained his back when he picked up a conveyor belt. X-rays revealed no evidence of
fractures or calcification. Dr. Simpson noted the necessity of reviewing prior medical records to
determine whether “this is indeed an industrial injury.” He indicated that appellant had been
unable to work since June 14, 1985.
On August 2, 1985 Dr. Martin stated that he treated appellant from January 11, 1983
through November 16, 1984 for injuries related to a September 23, 1975 industrial accident. His
treatment included physiotherapy and soft tissue manipulation. Dr. Martin diagnosed acute,
severe lumbar sprain/strain and cervicocranial syndrome. He opined that appellant was
permanently and totally disabled.
In a July 27, 1985 letter to appellant’s wife, Dr. Jack acknowledged that appellant was
withdrawn and may have psychotic tendencies. He documented the wife’s claim that appellant’s
back and head injuries caused work-related disability. Dr. Jack stated that he had no evidence to
substantiate what might have caused the cyst of appellant’s lower sacrum and that he did not
“really know if it was a congenital cyst or whatever the cause is.”
By decision dated December 23, 1985, the Office denied appellant’s recurrence claim on
the grounds that the medical evidence failed to establish that his alleged disability was causally
related to the September 23, 1975 injury.
Appellant submitted a March 1, 2004 report from Dr. Mark W. Cotton, Board-certified in
the field of family medicine, who stated that he first saw appellant on July 22, 2003.5
Appellant’s wife informed Dr. Cotton that appellant had sustained a work-related injury to his
back 30 years prior. Appellant also sustained a second injury when a steel door hit him in the
head. As a result of the head injury, he was in a comatose condition for several years.
Dr. Cotton stated that appellant now suffered from severe organic brain syndrome, which
required 24-hour care and continued to experience lower back pain.
On July 29, 2004 appellant requested reconsideration of the December 23, 1985 decision.
On August 11, 2004 the Office denied his request for merit review.
On August 1, 2005 Dr. Cotton opined that appellant’s organic brain syndrome condition
was a result of a 1978 head injury. He stated that, because of his mental impairment, he had
4

The Office noted that appellant’s original 1975 claim, which did not result in any time lost, had been closed on
April 19, 1980. It noted that the file was subsequently destroyed and would have to be reconstructed.
5

Dr. Cotton’s letter was dated March 1, 2003. The content of his letter, however, indicates that it was actually
written on March 1, 2004 and that the March 1, 2003 date was a typographical error.

3

been unable to make decisions regarding his own affairs since the original 1978 injury and was
not expected to improve.
Appellant again requested reconsideration.6 In a merit decision dated January 27, 2006,
the Office denied modification of its December 23, 1985 decision.
Appellant submitted a June 23, 1987 report from Dr. Hans von Brauchitsch, a Boardcertified psychiatrist, who opined that appellant was so severely mentally impaired that he was
totally unable to pursue gainful employment.
In nonmerit decisions dated May 12 and December 15, 2006, the Office denied
appellant’s April 15 and July 15, 2006 requests for reconsideration.7
On January 26, 2007 appellant again requested reconsideration. In a merit decision dated
June 27, 2007, the Office denied modification of its January 27, 2006 decision, finding that the
record did not contain a rationalized opinion supporting that his current condition was causally
related to the September 1975 work injury.
On July 23, 2007 appellant requested reconsideration of the June 27, 2007 decision. By
decision dated August 12, 2008, the Office denied his request for reconsideration on the grounds
that the evidence was insufficient to warrant merit review. In an order dated March 5, 2009, the
Board set aside the August 12, 2008 decision and remanded the case to the Office for merit
review of the June 27, 2007 decision.8
In a merit decision dated June 26, 2009, the Office denied modification of the June 27,
2007 decision on the grounds that there was no well-reasoned medical opinion supporting a
causal relationship between appellant’s current condition and the September 23, 1975 injury.
On July 15, 2009 appellant requested reconsideration, reiterating his claim that his
current disabling back condition resulted from his 1975 injury.
Appellant submitted reports dated May 10, 2005 and November 4, 2008 from Dr. Cotton
reiterating information contained in his previously submitted March 1, 2003 report. Dr. Cotton
stated that he had been treating appellant since August 2003 for lower back pain resulting from a
work-related lifting injury sustained 30 years earlier, and that, since that injury, appellant had
experienced continual pain in his lower back region. Appellant also sustained a work-related
head injury resulting in organic brain syndrome.
6

The Board notes that appellant sought review by the Board on August 12, 2005. Appellant subsequently
requested that the appeal be dismissed, so that he could pursue reconsideration with the Office. In an order dated
October 7, 2005, the Board dismissed his appeal. Docket No. 05-1682 (issued October 7, 2005). The Board further
notes that appellant submitted correspondence to the Board dated January 16, 2007, which was incorrectly
interpreted as a request for review of an Office decision. An appeal was docketed as No. 07-684. In an order dated
March 23, 2007, the Board dismissed the appeal.
7

The Board notes that on June 13, 2006 appellant filed an appeal under File No. xxxxxx397, which was docketed
as Docket No. 06-1338 (issued November 30, 2006). In an order dated November 30, 2006, the Board dismissed the
appeal after determining that appellant did not intend to appeal a decision in this case.
8

Docket No. 09-18 (issued March 5, 2009).

4

In a March 31, 1980 report, Dr. C.J. Nash, a treating physician, noted that appellant
suffered from a mental condition and indicated that he suspected a brain tumor. In a letter dated
November 20, 1980, Dr. Robert Shore, a Board-certified orthopedic surgeon, stated that he had
treated appellant in 1975 for a work-related back injury. He indicated that appellant had
recovered from that injury without permanent residuals and was released to return to work
effective October 16, 1975. Appellant also submitted copies of medical reports previously
submitted and considered by the Office.
By decision dated August 14, 2009, the Office denied appellant’s reconsideration request
on the grounds that the evidence submitted did not warrant merit review.
FACTUAL HISTORY
On April 28, 1978 appellant filed a traumatic injury claim alleging that on April 26, 1978
he sustained injuries to his head and shoulder in the performance of duty.9 He was struck in the
head by a metal door while bailing cardboard. Appellant stopped work on the date of injury and
returned to full duty on April 27, 1978. His claim was accepted for contusion of the left shoulder
and scalp hematoma. On March 3, 1980 appellant filed a claim for recurrence of disability.
This case has previously been before the Board. In a December 11, 2006 decision, the
Board affirmed the Office’s August 10, 2005 decision, finding that appellant failed to establish
that he sustained a recurrence of disability in March 1980 that was causally related to his
accepted April 26, 1978 employment injury.10 By decision dated February 20, 2009, the Board
affirmed the Office’s July 15, 2008 decision denying appellant’s request for reconsideration on
the grounds that it was untimely and failed to establish clear evidence of error.11 The facts and
law contained in the Board’s prior decisions are incorporated herein by reference.
On July 31, 2009 appellant again requested reconsideration, contending that he timely
filed all forms, including requests for reconsideration. In support of his request, he submitted
December 4, 1986 progress notes and September 19, 1979 emergency room records from
Comanche County Memorial Hospital; an April 26, 1978 Request for Examination and/or
Treatment; and October 29, 1980 paramedical progress notes.
By decision dated August 13, 2009, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
9

OWCP File No. xxxxxx587.

10

Docket No. 06-1337 (issued December 11, 2006). By order dated June 15, 2007, the Board denied appellant’s
petition for reconsideration. Docket No. 06-1337 (issued June 15, 2007). In an order dated April 16, 2008, the
Board dismissed appellant’s appeal of the December 11, 2006 decision on the grounds that he did not have the right
to appeal from the final decision of the Board. Docket No. 07-2155 (issued April 16, 2008).
11

Docket No. 09-47 (issued February 20, 2009).

5

previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.12 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which he claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.13 Where no such rationale is present,
medical evidence is of diminished probative value.14 To establish that a claimed recurrence of
the condition was caused by the accepted injury, medical evidence of bridging symptoms
between the present condition and the accepted injury must support the physician’s conclusion of
a causal relationship. Whether a particular injury causes an employee to be disabled for
employment and the duration of that disability are medical issues which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.15 Findings on
examination are generally needed to support a physician’s opinion that an employee is disabled
for work. When a physician’s statements regarding an employee’s ability to work consist only of
repetition of the employee’s complaints that he hurt too much to work, without objective
findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation.16 The Board will not require the
Office to pay compensation for disability in the absence of any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.17
ANALYSIS -- ISSUE 1
The Office found that appellant sustained an injury on September 23, 1975 and accepted
his traumatic injury claim for right lumbar muscle strain. Appellant claimed a recurrence of
disability as of March 1980 due to residuals of his accepted back injury. The medical evidence
of record, however, is insufficient to establish that he was disabled as a result of his accepted
injury. Therefore, appellant has failed to meet his burden of proof.
On April 14, 1980 Dr. Rowlan stated that appellant had a straight spine with minimal
tenderness, noting that he had a bone cyst over the right sacrum. He indicated that appellant was
interested in relating the cyst to his previous compensation claim. Dr. Rowlan did not provide
examination findings, a complete factual or medical history, or an indication that appellant was
disabled. Moreover, he did not offer an opinion as to the cause of appellant’s condition.

12

20 C.F.R. § 10.5(x).

13

Mary A. Ceglia, 55 ECAB 626 (2004).

14

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

15

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

16

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180, 182 (1948).

17

G.T., supra note 16; Fereidoon Kharabi, supra note 15.

6

Medical evidence which does not offer an opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.18
Appellant’s chiropractor, Dr. Martin, diagnosed acute, severe lumbar sprain/strain and
cervicocranial syndrome and opined that he was totally disabled as a result of his September 23,
1975 injury. A chiropractor is considered a physician for purposes of the Act only where he
diagnoses subluxation by x-ray.19 The evidence does not reflect that Dr. Martin diagnosed
subluxation based on the results of an x-ray. Therefore, the Board finds that Dr. Martin does not
qualify as a physician under the Act and his reports do not constitute probative medical evidence.
In September 10, 1980 hospital records, Brent Keyser, a fourth-year medical student,
diagnosed organic brain syndrome. The record also contains hospital records pertaining to
appellant’s treatment for a mental health condition. As there is no indication that these reports
were completed by individuals who qualify as physicians under the Act, they may not be
considered as probative medical evidence.20
In a January 25, 1985 report, Dr. Jack diagnosed “cyst of lower sacrum due to unknown
cause.” In response to a question as to whether he believed the diagnosis was in any way related
to the history provided by appellant, he stated that the cause was unknown and that appellant’s
wife claimed the disability was due to appellant’s workers’ compensation case. Dr. Jack noted
that he did not treat appellant at the time surrounding his accepted injury. His report does not
support appellant’s recurrence claim. Dr. Jack failed to provide examination findings or an
opinion as to the cause of appellant’s cyst or on its relationship to the accepted 1975 injury. In
fact, he clearly indicated that he did not know what caused appellant’s condition. Therefore,
Dr. Jack’s opinion is of limited probative value.
On June 19, 1985 Dr. Simpson stated that appellant was experiencing back pain radiating
to both buttock areas and the lower extremities and stated that he had been unable to work since
June 14, 1985. Relating appellant’s report of his 1975 injury, he noted the necessity of
reviewing prior medical records to determine whether appellant had sustained a work-related
injury. Dr. Simpson did not provide detailed examination findings or a complete factual or
medical background. He did not provide a specific diagnosis or express a definitive opinion as
to the cause of appellant’s current condition, reserving his opinion, instead, for his full review of
the medical record. As Dr. Simpson did not explain how appellant’s current condition was
causally related to the accepted injury, his report is of limited probative value.
Dr. Cotton noted reports of appellant’s wife that he had sustained a work-related injury to
his back 30 years prior, as well as a head injury in 1978, which rendered him comatose for
several years. He stated that appellant continued to experience lower back pain and now suffered
from severe organic brain syndrome as a result of the head injury, which required 24-hour care.
18

A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

19

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law. The term ‘physician’ includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).
20

Id.

7

Dr. Cotton’s reports did not provide examination findings or an opinion that appellant was
disabled as a result of his 1975 accepted back injury. Rather, he attributed appellant’s claimed
disability to organic brain syndrome, which has not been accepted as a consequential condition
of either of his claims. Dr. Cotton did not explain how appellant’s disabling condition was
causally related to the employment injury. Therefore, his reports are of diminished probative
value.21 Dr. von Brauchitsch also provided an unrationalized opinion that appellant was so
severely mentally impaired that he was totally unable to pursue gainful employment. As he
failed to relate appellant’s current condition to the 1975 injury, his report is of limited probative
value.
The medical evidence of record does not contain any rationalized medical evidence of
bridging symptoms between appellant’s present condition, which includes organic brain
syndrome and a cyst over the right sacrum and the accepted injury.22 Thus, appellant failed to
establish a causal relationship between his claimed disability and the 1975 injury.
As noted, a recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition resulting from a
previous injury or illness without a new or intervening injury.23 Appellant submitted absolutely
no rationalized medical evidence supporting that he experienced a spontaneous change in his
medical condition due to the accepted injury. Rather, he reported to the Office and to his
physician that, when he stood at work, his legs gave out. Appellant’s work activities, which
included using a knife to open boxes, caused pain in his back and the side of his neck and arm.
These work activities constitute intervening factors, which take his claim outside the parameters
of a recurrence claim.
On appeal, appellant contends that the medical evidence establishes that his current
disabling condition is causally related to the 1975 injury. However, as noted, he did not meet his
burden of proof to establish a recurrence of disability.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,24 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.25 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year

21

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

22

C.W., 60 ECAB ___ (Docket No. 07-1816, issued January 16, 2009).

23

See supra note 12.

24

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
25

20 C.F.R. § 10.606(b)(2).

8

of the date of that decision.26 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.27 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.28
ANALYSIS -- ISSUE 2
Appellant’s July 15, 2009 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits based on the first and second above-noted
requirements under section 10.606(b)(2).
In support of his request for reconsideration, appellant submitted reports dated May 10,
2005 and November 4, 2008 from Dr. Cotton reiterating information contained in his March 1,
2003 report, which was previously received and considered by the Office. These reports are
therefore cumulative and duplicative in nature.29 For similar reasons, copies of medical reports
previously submitted and considered by the Office are insufficient to warrant merit review.
In a March 31, 1980 report, Dr. Nash noted that appellant suffered from a mental
condition and indicated that he suspected a brain tumor. In a letter dated November 20, 1980,
Dr. Shore stated that he had treated appellant in 1975 for a work-related back injury, indicating
that appellant had recovered from that injury without permanent residuals. These reports do not
address the issue upon which the Office denied appellant’s claim in its June 26, 2009 decision,
namely, whether appellant had established a causal relationship between his current condition
and the September 23, 1975 injury. Therefore, the Board finds the reports of Dr. Shore and
Dr. Nash to be irrelevant. The Board finds that the evidence submitted by appellant does not
constitute relevant and pertinent new evidence not previously considered by the Office.30
Therefore, the Office properly determined that this evidence did not constitute a basis for
reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits pursuant to any of the three requirements under section 10.606(b)(2) and
properly denied his July 15, 2009 request for reconsideration.
LEGAL PRECEDENT -- ISSUE 3
The Federal Employees’ Compensation Act provides that the Secretary of Labor may
review an award for or against payment of compensation at any time on his own motion or on
26

Id. at § 10.607(a).

27

Id. at § 10.608(b).

28

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

29

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
30

See Susan A. Filkins, 57 ECAB 630 (2006). See also supra note 29 and accompanying text.

9

application.31 The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). To be entitled to a merit review of an Office
decision denying or terminating a benefit, a claimant must file her application for review within
one year of the date of that decision.32 The Board has found that the imposition of the one-year
limitation does not constitute an abuse of the discretionary authority granted the Office under
section 8128(a) of the Act.33
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.34 Office regulations and procedure provide that the Office will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in 20
C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on the
part of the Office.35
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.36 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.37 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.38 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.39 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.40 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.41

31

5 U.S.C. § 8128(a).

32

20 C.F.R. § 10.607(a).

33

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

34

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

35

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004).
36

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

37

See Leona N. Travis, 43 ECAB 227, 240 (1991).

38

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

39

See M.L., 60 ECAB ___ (Docket No. 09-956, issued April 15, 2010). See Leona N. Travis, supra note 37.

40

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

41

Pete F. Dorso, 52 ECAB 424 (2001).

10

ANALYSIS -- ISSUE 3
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.42 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.43 As appellant’s
July 31, 2009 request for reconsideration was submitted more than one year after the date of the
last merit decision of record on December 11, 2006, it was untimely. Consequently, he must
demonstrate clear evidence of error by the Office in denying his claim.44
Appellant’s contention that he timely filed his request is sufficient to warrant merit
review. It does not allege or establish error on the part of the Office, but merely repeats
arguments considered previously. Therefore, his argument is insufficient to raise a substantial
question concerning the correctness of the Office’s decision.
Medical evidence submitted by appellant is insufficient to establish that the Office
committed an error. Progress notes, emergency room records, a Request for Examination and/or
Treatment and paramedical progress notes essentially repeat information contained in prior
documents and fail to raise a substantial question as to the correctness of the Office’s decision.
The term “clear evidence of error” is intended to represent a difficult standard. The submission
of a detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.45 Moreover, the documents were not relevant to the issue decided by the
Office, namely whether appellant’s current conditions were causally related to the accepted work
injury. Therefore, they cannot establish clear evidence of error.46
The Board finds that the evidence submitted by appellant in support of his untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that the Office committed an error. Therefore, appellant failed to meet his
burden of proof to show clear evidence of error on the part of the Office.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence disability
commencing March 3, 1980 due to his accepted September 23, 1975 employment injury.

42

Supra note 32.

43

Robert F. Stone, 57 ECAB 292 (2005).

44

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

45

Joseph R. Santos, 57 ECAB 554 (2006).

46

See supra note 40 and accompanying text.

11

The Board also finds that the Office properly refused to reopen his claim for
reconsideration of the merits in File No. xxxxxx397 pursuant to 5 U.S.C. § 8128(a).
The Board further finds that the Office properly refused to reopen his claim for
reconsideration of the merits in File No. xxxxxx587 on the grounds that the request was untimely
and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 14 and June 26, 2009 in File No. xxxxxx397 are affirmed.
It is further ordered that the decision dated August 13, 2009 in File No. xxxxxx587 is affirmed.
Issued: February 16, 2011
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

12


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
J.G., Appellant
and
NATIONAL ENDOWMENT FOR THE ARTS,
THE NANCY HANKS CENTER,
Washington, DC, Employer
_________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 11-1437
Issued: September 27, 2011

Case Submitted on the Record

ORDER GRANTING REQUEST FOR ORAL ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

By application dated May 23, 2010, appellant filed for review of a November 29, 2010
decision of the Office of Workers’ Compensation Programs’ (OWCP) which denied his claim for
an injury in the performance of duty. The appeal was docketed as No. 11-1437. Appellant
submitted a timely request for oral argument, explaining the need to address the evidence of
record before the Board.
The Board has duly considered the matter and finds that appellant’s request for oral
argument should be granted. Pursuant to 20 C.F.R. § 501.5(a), oral argument may be held in the
discretion of the Board. In the present appeal, appellant’s request was timely filed and a need for
oral argument was advanced. The Board has jurisdiction over the merits of appellant’s claim.
The November 29, 2010 OWCP decision found that the medical evidence did not address the
factual history of how the injury occurred. Appellant contends that his condition was sustained
in the performance of duty. He also contends that the medical evidence supports his claim. The
Board, in its discretion, grants oral argument.

IT IS HEREBY ORDERED THAT appellant’s request for oral argument in Docket
No. 11-1437 be granted.
Issued: September 27, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2