United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bunker Hill, IL, Employer
__________________________________________

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

Docket No. 13-474
Issued: May 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2012 appellant, through counsel, filed a timely appeal from a
November 29, 2012 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 claim.
ISSUE
The issue is whether appellant sustained bilateral knee injury as a result of her federal
employment.
FACTUAL HISTORY
On July 19, 2011 appellant, then a 51-year-old regular rural carrier, filed an occupational
disease claim alleging that as a result of working 29 years at the employing establishment her
knees were weak and worn out. She indicated that she was first aware of her condition in
April 2011 and that it was caused or aggravated by her employment May 9, 2011.
1

5 U.S.C. § 8101 et seq.

Along with her claim, appellant submitted a July 7, 2011 electrocardiogram (EKG) and
laboratory reports from Hillsboro Area Hospital dated July 8, 2011.
By letter dated August 8, 2011, OWCP advised appellant of the deficiencies in her claim
and that it required additional factual and medical evidence. It requested a comprehensive
medical report from a physician. Appellant was given 30 days to submit the requested
information in support of her claim. No new evidence was received.
By decision dated October 17, 2011, OWCP denied appellant’s claim. It found that
appellant had not submitted any medical evidence containing a medical diagnosis in connection
with the work events.
On October 17, 2012 appellant, through her attorney, requested reconsideration.
Several medical reports from Dr. Daniel Adair, a Board-certified orthopedic surgeon,
were submitted. These included medical reports dated May 9, 25 and 31, June 23, July 22,
August 3, 9 and 19, September 26, October 24 and September 26, 2011. In his May 9, 2011
report, Dr. Adair noted that appellant had left knee pain and had surgery on her left knee about
five years ago. He diagnosed knee joint pain. In subsequent reports, Dr. Adair continued to
diagnose knee joint pain. On May 25, 2011 he noted that appellant has not responded well to
multiple conservative methods and measures. Dr. Adair performed an elective debridement of
the left knee and debridement patellofemoral joint. He reported on August 9, 2011 that he had
performed a right knee arthroscopy on July 11, 2011. On August 3, 2011 Dr. Adair performed
an elective left total knee arthroplasty. In an August 5, 2011 report, he provided a postoperative
diagnosis of degenerative arthritis of the left knee.
A July 7, 2011 hospital report from Hillsboro Area Hospital, a history and physical
assessment dated August 2, 2011 and a magnetic resonance imaging (MRI) scan dated May 9,
2011 were also received along with a February 21, 2011 medical report related to appellant’s
wrists.
By decision dated November 29, 2012, OWCP modified the denial of appellant’s claim
to reflect causal relationship was not established.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.2 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

2

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her claimed knee condition and her federal
employment. This burden includes providing medical evidence from a physician who concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5
ANALYSIS
The Board finds that appellant failed to submit sufficient medical evidence establishing
that her knee conditions were causally related to factors of her employment. For this reason,
appellant has not discharged her burden of proof.
Appellant submitted several reports from her treating physician, Dr. Adair who diagnosed
joint knee pain and eventually performed an elective arthroscopic procedures of both knees,
debridement patellofemoral joint as well as an elective left total knee arthroplasty. In his
August 5, 2011 report, Dr. Adair diagnosed degenerative arthritis of the left knee. He, however,
did not offer any opinion as to whether appellant’s bilateral knee conditions arose from or were
aggravated by her work activities.6 Thus, Dr. Adair’s opinion is of limited probative value.
The other evidence of record, including diagnostic testing, does not offer an opinion on
causal relationship of appellant’s knee conditions. Thus, these reports are of limited probative
value.
There is no probative, rationalized medical opinion, based upon an accurate employment
history, that the diagnosed knee conditions were causally related to employment factors in the
current claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her conditions were caused, precipitated or aggravated by her employment is

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

3

sufficient to establish causal relationship.7 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her knee conditions were causally related to her employment in the current
claim.
On appeal, appellant’s attorney contends OWCP’s decision is contrary to fact and law.
As noted, appellant has not met her burden of proof in establishing that her knee conditions were
causally related to her employment in the current claim. Appellant may submit new evidence or
argument with a written request for reconsideration to OWCP within one year of this merit
decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing that
her knee conditions were sustained in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 29, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
INDEPENDENT AGENCIES, U.S. EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1616
Issued: July 14, 2017

Case Submitted on the Record

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

On August 8, 2016 appellant filed a timely application for review from a March 17, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration as the request was untimely filed and failed to demonstrate clear
evidence of error. The Clerk of the Appellate Boards docketed the appeal as No. 16-1616.
The Board notes that on March 11, 2015 an OWCP hearing representative affirmed a
March 10, 2014 OWCP decision denying appellant’s claim for an emotional condition because
she had not established a compensable factor of employment. On March 10, 2016 OWCP
received appellant’s reconsideration request.1
The Board has considered the matter and finds that the March 10, 2016 request
constituted a timely request for reconsideration. OWCP regulations at 20 C.F.R. § 10.607(a),
provide that an “application for reconsideration must be received within one year of the date of
the OWCP decision for which review is sought.” In this case, while appellant articulated that she
was requesting reconsideration of the March 10, 2014 decision, the most recent merit decision on
1

By letter dated March 11, 2016, appellant corrected grammatical and formatting errors in her March 10, 2016
request for reconsideration. She also added an e-mail address of the employing establishment’s representative to
show the method of service to him.

the same issue was dated March 11, 2015. Appellant’s request for reconsideration was received
by OWCP on March 10, 2016. Because appellant’s request for reconsideration was received on
March 10, 2016, the Board finds that it was timely filed.
Because appellant filed a timely reconsideration request, OWCP should have reviewed
her request under the standard for a timely request.2 The clear evidence of error standard utilized
by OWCP in its March 17, 2016 decision is appropriate only for untimely reconsideration
requests.3 The Board will set aside OWCP’s March 17, 2016 decision and remand the case for
an appropriate final decision on appellant’s timely request for reconsideration.
IT IS HEREBY ORDERED THAT the March 17, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: July 14, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

See 20 C.F.R. § 10.606(b)(3).

3

Id. at § 10.607(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
HONOLULU INTERNATIONAL AIRPORT,
Honolulu, HI, Employer
__________________________________________

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

Docket No. 07-1942
Issued: January 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from an April 6, 2007 decision of an
Office of Workers’ Compensation Programs’ hearing representative affirming an August 22,
2006 decision, which found that her left middle trigger finger was not employment related.
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 has established that her left middle trigger finger was
causally related to her employment.
FACTUAL HISTORY
On February 8, 2006 appellant, then a 52-year-old transportation security screener, filed
an occupational disease claim alleging that her left middle finger tendinitis was due to her

repetitive duties. On January 21, 2006 she first became aware of the condition and on
February 8, 2006 she first realized it was due to her repetitive work duties.
In a letter dated May 24, 2006, the Office informed appellant that the evidence of record
was insufficient to support her claim for carpal tunnel syndrome. It advised her as to the medical
and factual information required to support her claim. Appellant was given 30 days to submit
the requested information.
On February 8, 2006 Dr. Daniel I. Singer, an examining physician specializing in
orthopedic and hand surgery, diagnosed left middle trigger finger, right thumb probable
carpometacarpal (CMC) arthritis and diabetes. He noted that appellant related that she had pain
in the base of her right thumb and in the left middle finger. Appellant also stated that her left
middle finger had been catching for about six months. She stated that she believed that the
condition was due to her employment duties. A physical examination revealed tenderness at the
A-1 pulley and CMC joint, no definite catching and “positive abduction stress test of the right
thumb.”
By decision dated August 22, 2006, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish that the condition was causally related to her
employment duties.
Subsequent to the August 22, 2006 decision the Office received an August 15, 2006
report from Dr. Singer who diagnosed CMC arthritis which was not due to appellant’s
employment. Dr. Singer noted that appellant also had diabetes and left middle trigger finger. He
stated that, while appellant believed that her left middle trigger finger was employment related,
“[d]iabetes is one of the predisposing factors for trigger finger and it could be considered related
to the trigger finger.” Dr. Singer noted that he could not deny that appellant’s work activities
could have caused the trigger finger condition as “the etiology of trigger finger is unclear.”
On September 1, 2006 appellant requested an oral hearing before an Office hearing
representative, which was held on December 19, 2006. In an attached statement, appellant
reiterated her belief that her left middle trigger finger was due to her repetitive work duties.
On December 20, 2006 Dr. Terry A. Vernoy, a treating orthopedic surgeon, diagnosed
left middle finger chronic extensor tendon synovitis. He reported appellant’s duties required
moving luggage in and out of an x-ray machine. A physical examination revealed “no locking
on flexion or extension to the middle finger on the flexor side” and a “palpable lump and
clicking sensation” was noted on extension.
By decision dated April 6, 2007, the Office hearing representative affirmed the denial of
appellant’s claim. She found that neither Dr. Vernoy nor Dr. Singer provided an opinion
explaining how appellant’s trigger finger condition was causally related to her employment
duties.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced in the work environment
over a period longer than a single workday or shift by such factors as systemic infection,
2

continued or repeated stress or strain or other continued or repeated conditions or factors of the
work environment.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.2
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.3 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.4 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
conditions and the specific employment factors identified by the employee.5
The mere fact that a disease manifests itself during a period of employment does not raise
an inference that there is a causal relationship between the two.6 Neither the fact that the disease
became apparent during a period of employment, nor the belief of appellant that the disease was
caused or aggravated by employment conditions, is sufficient to establish causal relation.7
ANALYSIS
The Board finds that appellant has failed to submit sufficient medical evidence providing
a rationalized opinion which relates her left middle trigger finger condition was causally related
to her employment. For this reason, she has not discharged her burden of proof to establish her
claim.
1

Donald W. Wenzel, 56 ECAB ___ (Docket No. 05-146, issued March 17, 2005); William Taylor, 50 ECAB 234
(1999); see also 20 C.F.R. § 10.5(q).
2

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); Donna L. Mims, 53 ECAB 730 (2002).

3

David Apgar, 57 ECAB ___ (Docket No. 05-1249, issued October 13, 2005)

4

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Kathryn E. Demarsh, 56 ECAB ___
(Docket No. 05-269, issued August 18, 2005).
5

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Roy L. Humphrey, 57 ECAB ___ (Docket
No. 05-1928, issued November 23, 2005).
6

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

7

V.W., 58 ECAB ___ (Docket No. 07-234, issued March 22, 2007).

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Dr. Vernoy diagnosed left middle finger chronic extensor tendon synovitis, but offered no
opinion as to the cause of the condition. As he offered no opinion as to the cause of appellant’s
condition, his report is of diminished probative value on the issue of causal relationship and
insufficient to support her claim.8 On February 8, 2006 Dr. Singer noted that appellant attributed
her trigger finger to her employment duties. On August 15, 2006 he opined that her left middle
trigger finger was not employment related. Dr. Singer explained that appellant had diabetes
which would predispose her to this condition. He also noted that he could not deny that
appellant’s employment duties could have caused or aggravated appellant’s trigger finger and
noted that the cause of trigger finger is unknown. The Board finds that Dr. Singer’s opinion is
equivocal in that he initially attributed appellant’s middle trigger finger condition to her diabetes,
but noted that he could not rule out her employment duties as causing her condition. The Board
has held that medical opinions which are speculative or equivocal in character are of diminished
probative value.9 While the opinion of a physician supporting causal relationship need not be
one of absolute medical certainty, the opinion must not be speculative or equivocal. As
Dr. Singer’s opinion is speculative and unrationalized, his reports are insufficient to support
appellant’s burden. The medical evidence of record is not sufficient to establish a causal
relationship between appellant’s condition and her implicated employment factors.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a left middle trigger finger condition causally related to her federal employment.

8

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

9

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2007 is affirmed.
Issued: January 10, 2008
Washington, DC

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

David S. Gerson, 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
__________________________________________
F.A., Appellant
and
DEPARTMENT OF COMMERCE, BUREAU
OF THE CENSUS, Atlanta, GA, Employer
__________________________________________

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

Docket No. 10-389
Issued: October 21, 2010

Case Submitted on the Record

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

JURISDICTION
On November 27, 2009 appellant filed a timely appeal from the merit decision of the
Office of Workers’ Compensation Programs dated July 14, 2009. Pursuant to 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
emotional condition in the performance of duty.
FACTUAL HISTORY
On October 9, 2008 appellant, then a 48-year-old information specialist, filed a claim
alleging that he sustained an emotional condition in the performance of duty. He asserted that
while attending a conference in Denver on July 9, 2008 Thomas Scott Wilkie, his supervisor,
told the attendees not to go to the restroom during the conference unless one’s “bladder was
about to burst.” Appellant asserted that Mr. Wilkie also stated that another supervisor indicated
that the attendees were not to leave their seats for any reason. On the claim form, Mr. Wilkie,

stated that appellant left the conference room on July 9, 2008 to get refreshments while a speaker
was presenting. He spoke to all three members of his staff attending the conference (appellant,
Prince Hall and Edmund Harvey) told them that they should not leave the conference for
refreshments or to answer their cell phones. Mr. Wilkie stated that he specifically told them that
this directive did not apply to using the restroom.
Appellant submitted several statements in which he further discussed the incidents and
conditions at work which he believed caused his emotional condition. He provided further
details about his claim that on July 9, 2008 Mr. Wilkie told him that he could only leave the
conference if his bladder was about to burst. Appellant discussed his attempts, between mid and
late August 2008, to meet with Reginald Bigham, a Deputy Director for the employing
establishment, to discuss complaints he had about Mr. Wilkie and some coworkers, including
Mr. Harvey and Quintin Richardson. He suggested that several officials wrongly prevented him
from meeting with Mr. Bigham.1 Appellant also alleged that he was wrongly criticized for
calling Mr. Richardson’s supervisor at Harris Corporation. He claimed that on August 13, 2008
he was deliberately ignored by Mr. Richardson. When appellant called him on the telephone, he
refused to answer. Mr. Richardson told appellant that he was not on the telephone when he
called and Mr. Hall then stated, “He [ha]s been ignoring you.” Appellant indicated that
Mr. Richardson displayed a smirking smile on his face as if to say he did not care whether he
answered his telephone or not.
Appellant further claimed that Mr. Harvey harassed him on August 15, 2008 by asking
him four times whether he got an email regarding a work team meeting that had recently been
held. He felt that Mr. Harvey was trying to make him angry and responded each time, “What
can I do for you?” Appellant acknowledged that he became frustrated and raised his voice
towards the end of his conversation with Mr. Harvey. He asserted that Mr. Wilkie did not
adequately support him when he spoke to him about the matter because he indicated that
Mr. Harvey was “only joking.” Appellant alleged that the employing establishment wrongly
terminated him in late August 2008 and suggested that the termination was precipitated by his
whistleblower activities with respect to Mr. Richardson and Mr. Harvey.
In a November 4, 2008 statement, Roberta T. Thompkins, a friend of appellant, indicated
that appellant told him that Mr. Wilkie stated at a conference that he should not get up to go to
the bathroom unless “his bladder was about to burst.” On October 10, 2008 Mr. Harvey stated
that he did not hear Mr. Wilkie say to the attendees at the July 2008 conference that they could
only leave if they were about to wet their pants. He noted that appellant stated to him, “What,
they only want us to leave when we are about to wet our pants?” Appellant then told Mr. Harvey
that he would not wet his pants and Mr. Harvey indicated that he told appellant that he would
leave before wetting his pants. In an October 10, 2008 statement, Mr. Hall stated that Mr. Wilkie
told him, Mr. Harvey and appellant that they were not to interrupt the speakers by unnecessarily
leaving and entering the room during lectures. He did not recall ever being told not to use the
restroom “even if your bladder bursts” or anything to that effect.

1

Appellant indicated that he was told that he had to go through the chain of command before meeting with
Mr. Bigham.

2

In a December 29, 2008 statement, Mr. Richardson stated that he was unable to answer
his telephone on an occasion when appellant called due to an assignment from his supervisor
which required immediate attention. In a January 6, 2009 statement, Mr. Hall indicated that his
statement about Mr. Richardson ignoring him was only meant to be humorous, not to incite
turmoil. He indicated that he told appellant he was not in any position to see whether
Mr. Richardson actually ignored the telephone call. In a December 29, 2008 statement, Gregory
Evans, a coworker, indicated that on August 13, 2008 appellant had a hostile tone when he asked
Mr. Richardson why he did not answer the telephone.2
Appellant submitted several medical reports, including a July 14, 2008 report in which an
attending clinical psychologist noted that he had an increase in depressive symptoms. The
psychologist noted that he attributed this increase in symptoms to an interaction with his
supervisor.
In a January 27, 2009 decision, the Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. It found that
appellant did not submit sufficient evidence to show that he was harassed by supervisors or
coworkers or that the employing establishment committed error or abuse with respect to
administrative matters.
Appellant requested a hearing before an Office hearing representative. At the May 6,
2009 hearing, appellant testified that the witness statements and other evidence of record showed
that he was subjected to harassment and that the employing establishment committed error and
abuse with respect to several matters. In a July 14, 2009 decision, the Office hearing
representative affirmed the Office’s January 27, 2009 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4

2

The record also contains a December 30, 2008 statement in which Mr. Bigham’s secretary indicated that she
made several attempts to have appellant meet with Mr. Bigham, but that his schedule prevented such a meeting
taking place. In an undated statement, Mr. Bigham indicated that he was unable to meet with appellant during the
time he requested a meeting.
3

5 U.S.C. §§ 8101-8193.

4

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).

3

Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.6
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.7 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.8
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. The Board must,
thus, initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant alleged that harassment on the part of his supervisors and coworkers
contributed to his claimed stress-related condition. He asserted that while attending a conference
in Denver on July 9, 2008 his supervisor, Mr. Wilkie, told the attendees not to go to the restroom
during the conference unless one’s “bladder was about to burst.” Appellant claimed that
Mr. Wilkie also stated that another supervisor indicated that the attendees were not to leave their
seats for any reason. He asserted that on August 13, 2008 he was deliberately ignored by
Mr. Richardson, a coworker, when he called him on the telephone and he refused to answer and
that Mr. Hall, another coworker, told him that Mr. Richardson was ignoring him. Appellant
further claimed that Mr. Harvey, a coworker, harassed him on August 15, 2008 by asking him
four times whether he got an email regarding a work team meeting that had recently been held.
To the extent that disputes and incidents alleged as constituting harassment by
supervisors and coworkers are established as occurring and arising from appellant’s performance
of his regular duties, these could constitute employment factors.9 However, for harassment to
5

Pamela R. Rice, 38 ECAB 838, 841 (1987).

6

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

7

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

8

Id.

9

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

4

give rise to a compensable disability under the Act, there must be evidence that harassment or
discrimination did in fact occur. Mere perceptions of harassment are not compensable under the
Act.10 In the present case, the employing establishment denied that appellant was subjected to
harassment and appellant has not submitted sufficient evidence to establish that he was harassed
by his supervisors or coworkers.11
Appellant alleged that supervisors and coworkers made statements and engaged in
actions which he believed constituted harassment, but he not provide corroborating evidence,
such as witness statements, to establish that the statements actually were made or that the actions
actually occurred.12 In fact, with respect to his claim that Mr. Wilkie told him not to go to the
restroom unless his bladder was about to burst, Mr. Hall and Mr. Harvey testified that they were
present at the conference and that Mr. Wilkie made no such comment. They indicated that
Mr. Wilkie only asked that attendees try to avoid leaving during a speaker’s talk for such matters
as getting refreshments or answering cell phones.13 Moreover, Mr. Richardson testified that he
did not in fact ignore appellant on an occasion when he called. Mr. Hall admitted that he stated
that Mr. Richardson was ignoring him, but noted that he only intended to make a humorous
comment. Not every statement uttered in the workplace will give rise to coverage under the Act
and appellant has not shown how such an isolated comment would rise to the level of verbal
abuse or otherwise fall within the coverage of the Act.14 There is no evidence that Mr. Harvey
harassed appellant on August 15, 2008 and in fact he admitted that he raised his voice to
Mr. Harvey on that date. Thus, appellant has not established a compensable employment factor
under the Act with respect to the claimed harassment.
Appellant indicated that he sustained stress due to his attempts, between mid and late
August 2008, to meet with Mr. Bigham, a deputy director for the employing establishment, to
discuss work complaints. He also alleged that he was wrongly criticized for calling
Mr. Richardson’s supervisor at Harris Corporation. Appellant asserted that Mr. Wilkie did not
adequately support him when he spoke to him about an interaction he had with Mr. Harvey. He
also alleged that the employing establishment wrongly terminated him in late August 2008.
Regarding appellant’s allegations that the employing establishment engaged in improper
disciplinary actions and mishandled his requests to discuss problems with supervisors, the Board
10

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

11

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
12

See William P. George, 43 ECAB 1159, 1167 (1992).

13

On appeal to the Board, appellant questioned the veracity of his coworkers’ statements, but he did not present a
valid reason for this belief. Ms. Thompkins, a friend of appellant, indicated that appellant told him that Mr. Wilkie
stated at a conference that he should not get up to go to the bathroom unless “his bladder was about to burst.”
However, Ms. Thompkins was not present at the conference held on July 9, 2008. Even if Mr. Wilkie did make the
comment attributed to him, such a comment, in and of itself, would not have risen to the level of harassment.
14

See Mary A. Sisneros, 46 ECAB 155, 163-64 (1994); David W. Shirey, 42 ECAB 783, 795-96 (1991).
Moreover, Mr. Evans, a coworker, indicated that on August 13, 2008 appellant had a hostile tone when he asked
Mr. Richardson why he did not answer the telephone.

5

finds that these allegations relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties and do not fall within the coverage of the
Act.15 Although such matters are generally related to the employment, they are administrative
functions of the employer and not duties of the employee.16 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.17 However, appellant did not submit sufficient
evidence to establish that the employing establishment committed error or abuse with respect to
these matters. For example, he did not submit the findings of grievances showing that the
employing established committed error or abuse with respect to these matters.18 Thus, appellant
has not established a compensable employment factor under the Act with respect to
administrative matters.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty.19
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.

15

See 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, 1266-67 (1988).
16

Id.

17

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

18

It should be noted that Mr. Bigham and his secretary testified that they made honest attempts to set up a
meeting with appellant.
19

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, 502-03 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 14, 2009 is affirmed.
Issued: October 21, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jackson, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0941
Issued: September 13, 2016

Case Submitted on the Record

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

On March 24, 2015 appellant filed an application for review of a March 3, 2015 decision
the Office of Workers’ Compensation Programs (OWCP) which found that he had abandoned his
request for an oral hearing. The appeal was docketed as No. 15-0941.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. On July 14, 2014 OWCP denied appellant’s claim for
an emotional condition. On August 8, 2014 appellant requested an oral hearing received by
OWCP on August 13, 2014. By letter dated January 8, 2015, OWCP advised him that a
telephonic oral hearing was scheduled for 10:00 a.m. on February 10, 2015. However, on
January 26, 2015, its January 8, 2015 letter was returned as undeliverable. By decision dated
March 3, 2015, OWCP found that appellant had abandoned his request for an oral hearing, as he
failed to appear for the hearing, and that there was no indication in the file that he had contacted
OWCP either prior or subsequent to the scheduled hearing to explain his failure to appear. On
appeal, appellant contends that he did not receive notice of the oral hearing.
Section 10.617(b) of OWCP’s regulations require OWCP to mail a notice of the time and
place of the hearing to appellant at least 30 days before the scheduled date.1 OWCP has the
1

20 C.F.R. § 10.617(b). Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by OWCP is entitled to receive a hearing upon writing to the
address specified in the decision within 30 days of the date of the decision for which a hearing is sought. 5 U.S.C.
§ 8124(b)(1); 20 C.F.R. § 10.616(a).

burden of proving that it mailed a notice of a scheduled hearing to appellant.2 Under the mailbox
rule, it is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual. This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed.3
However, as a rebuttable presumption, receipt will not be assumed when there is evidence of
nondelivery.4 On January 18, 2015 OWCP’s January 8, 2015 letter advising appellant of the date
and time of the telephonic oral hearing was returned as undeliverable. Thus, the Board finds that
the mailbox rule does not apply and that OWCP did not provide appellant sufficient notice of the
scheduled telephonic hearing.5 For this reason, the case will be remanded to OWCP for
scheduling of another hearing before an OWCP hearing representative with proper notice
provided to all parties. Following this and any necessary further development, OWCP shall issue
an appropriate decision. Accordingly,
IT IS HEREBY ORDERED THAT the March 3, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this order of the Board.
Issued: September 13, 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

2

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

3

See Michelle Lagana, 52 ECAB 187 (2000).

4

See M.C., Docket No. 15-0479 (issued April 21, 2015); C.O., Docket No. 10-1796 (issued March 23, 2011);
M.U., Docket No. 09-0526 (issued September 14, 2009).
5

Id.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
NETWORK OPERATIONS & SECURITY
CENTER, Fort Sam Houston, TX, Employer
__________________________________________

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

Docket No. 13-644
Issued: July 19, 2013

Case Submitted on the Record

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

JURISDICTION
On January 28, 2013 appellant filed a timely appeal of the September 26, 2012 and
January 15, 2013 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 merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition while in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 6, 2012 appellant, then a 39-year-old information technology specialist,
filed an occupational disease claim for chest pain and panic attacks due to work-related stress.2
Appellant provided a statement dated February 25, 2012 which explained that he was
unable to satisfactorily complete or update budgetary and procurement documentation because
his supervisor, Kurt F. Benz, failed to provide adequate training. Management also denied
numerous transfer requests from July to October 2011. Thereafter, appellant received letters of
concern for substandard performance on October 13 and November 1, 2011.3
Appellant also alleged that Mr. Benz and Greg Knutson, the technical supervisor for
budget and procurement actions, forced him to work overtime in violation of the labor agreement
on June 24, 2011.4 A few days later, during a June 30, 2011 meeting, Mr. Benz and Mr. Knutson
chided appellant about a network security software order. In general, appellant alleged that
Mr. Knutson spoke to him in a rude and condescending manner.
On September 28, 2011 appellant alleged that he sustained a panic attack at work, but the
acting supervisor, Chris Combs, failed to call for an ambulance. In September and
October 2011, Mr. Benz showed appellant his triple bypass surgical scars and remarked that he
could not do anything about stress on the job. He also allegedly belittled appellant’s preexisting
post-traumatic stress disorder related to military service.
Mr. Benz and Jose Maldonado, the chief of human resources, notified appellant on
October 13, 2011 that he would receive a letter of concern. When appellant asked for a union
representative, Mr. Benz telephoned a union representative, who commented that she was not
available in person. When a union representative was told by Mr. Benz that a performance
improvement plan was in place, she advised him to afford appellant 60 days to correct matters
pursuant to the labor agreement. However, Mr. Benz signed the letter of concern. Appellant
also made requests for union representation at meetings with management on October 4, 7 and
31, 2011, each of which was denied.
On October 31, 2011 Mr. Benz mistakenly informed appellant that he had not accrued
sufficient leave time to attend to his wife’s childbirth and discussed the prior letter of concern.
Thereafter, appellant experienced chest pain and shortness of breath. Mr. Benz ridiculed him
while both were waiting for the ambulance to arrive.
2

Appellant originally filed a Form CA-1.
occupational disease

OWCP adjudicated his claim for traumatic injury as one for

3

The case record contains three such letters signed by Mr. Benz and dated October 13, 31 and November 1, 2011,
respectively.
4

In a June 27, 2011 e-mail, Mary O’Haver, the union steward, informed Mr. Benz that “an employee was
mandated to work overtime within an hour prior to their departure.” The employee was not identified. Ms. O’Haver
then cited Article 19, Section 5 of the labor agreement requiring the employing establishment to make “reasonable
efforts to notify employees of the possibility of overtime work or the requirement to work overtime far enough in
advance to allow employees to adjust to the requirement.”

2

In a March 12, 2012 letter, Mr. Benz detailed that appellant started work at the employing
establishment on March 27, 2011. For the first three months, he performed well with regards to
property accountability and hand receipt tasks. Appellant was then assigned the line item budget
for the 2012 fiscal year. Although he completed the first phase of the project in less than two
weeks, he struggled to make further progress through August 2011. In September 2011,
appellant was assigned the “horse blanket,” a comprehensive budgetary and procurement
document, which he also failed to complete. During an October 3, 2011 meeting that was
attended by a union representative, he stated for the first time that Mr. Benz’s directions and
expectations were unclear and that he wanted to transfer. The following week, Mr. Benz drafted
a letter of concern for unsatisfactory performance, which a union representative advised
appellant not to sign during a teleconference. He gave copies of the letter to appellant on
October 31 and November 1, 2011. From September to November 2011, appellant was on
intermittent leave due to illness and his wife’s childbirth.
Appellant submitted medical evidence. The September 27, 2011 emergency department
records signed by Dr. Sharif Eusufzai, an internist, indicated that appellant sustained stress,
anxiety and chest pain at work and that his job was “demanding.” Chest x-rays exhibited
minimal bibasilar atelectasis. In an October 7, 2011 report, Dr. Crystal A. Pearson, a
psychologist, noted that appellant had a “high pressure” job that caused him to experience stress,
anxiety, depression, irritability and sleeplessness. Appellant’s requests for a transfer to a less
demanding position were denied. In addition, he previously sustained post-traumatic stress
disorder due to disturbing events that transpired while he was serving in the military. Following
a mental status examination, Dr. Pearson diagnosed post-traumatic stress disorder and work
stress.
The October 17 and 31, 2011 emergency department records signed by Dr. Regan F.
Lyon, an emergency physician, and Dr. Stacy L. Fennell, an osteopath specializing in emergency
medicine, stated that appellant sustained chest pain and anxiety at work twice. On both
occasions, the condition arose after appellant was reprimanded by a superior.
In a November 1, 2011 report, Dr. Michael A. Dawes, a psychiatrist, related that
appellant experienced stress and anxiety that worsened after he began to work for the employing
establishment more than six months prior. In particular, Mr. Benz placed “unreasonable
expectations” on appellant and “ridicules him.” Appellant also complained of hallucinations,
specifying that he saw a soldier cutting his wrists in an attempted suicide. Dr. Dawes conducted
a mental status examination and observed anxiety, depression, affect congruent to immediate
thought content and conditional suicidal ideation. He noted that appellant was minimally
cooperative and constantly writhing. Dr. Dawes diagnosed post-traumatic stress disorder, panic
without agoraphobia, depressive disorder and conditional suicidal ideation with chronic life
stressors.
Dr. Josie A. Cigarroa, a psychiatrist, remarked in a November 10, 2011 report that
appellant did not receive training at work, which caused increased stress and triggered symptoms
of his post-traumatic stress disorder. The denial of appellant’s transfer request further
exacerbated his condition. The mental status examination was unremarkable. Dr. Cigarroa
diagnosed post-traumatic stress disorder, depressive disorder, panic without agoraphobia and

3

relational and occupational stressors.5 In December 7 and 19, 2011 reports, she noted that
appellant’s recent return to work retriggered symptoms of post-traumatic stress disorder,
including flashbacks, tinnitus, hypervigilance and social isolation. Dr. Cigarroa concluded in
January 20 and February 2, 2012 reports that appellant was unable to work due to recurring panic
attacks. She advised, “A work environment that is suitable for [appellant] is one that is left up to
[his] discretion....”6
An undated note from Dr. Abelardo Rodriguez, a Board-certified family practitioner,
recommended that appellant “be placed in a less stressful job situation.”
A March 15, 2012 letter from the employing establishment’s human resources
department informed appellant that his medical condition, which limited his ability to perform
his normal duties, could not be reasonably accommodated.
By decision dated March 23, 2012, OWCP denied appellant’s claim, finding the evidence
insufficient to establish any compensable factors of employment.
On April 2, 2012 the employing establishment terminated appellant’s employment
effective April 6, 2012 on the grounds that he was unfit for duty.
Appellant requested a telephonic hearing, which was held on July 12, 2012. He testified
that his medical condition was due, in part, to his workload, which was larger than normal and
included inventory, contracts, budgets and meetings. Appellant added that Mr. Benz did not
provide written feedback or verbal counseling before disciplining him, frequently rescheduled
deadlines, retaliated against him for complaining to human resources and treated him in a
condescending manner.
In an August 6, 2012 letter, Mr. Benz asserted that appellant received adequate training
and guidance from management as well as templates of line item budgets and fiscal plans. He
also maintained that appellant’s workload was “no different than in previous years.” Mr. Benz
pointed out that appellant usually asked for an ambulance and a leave of absence whenever he
was presented with a letter of concern.
In an August 7, 2012 letter, Christy L. George, a human resources specialist, attested that
Mr. Benz verbally counseled and issued letters of concern to appellant due to his failure to meet
deadlines or otherwise perform in a satisfactory manner. She noted that appellant used sick leave
prior to deadlines and returned to work thereafter. Ms. George confirmed that appellant was on
leave without pay pursuant to the Family and Medical Leave Act (FMLA) for the period
November 7, 2011 to February 6, 2012; however, he did not return, citing a work injury.
Appellant submitted medical records to the employing establishment’s medical officer, who
determined that he was unfit for work but could not be accommodated. When he failed to

5

Dr. Cigarroa presented similar findings in November 17 and 23, 2011 reports.

6

Dr. Cigarroa later added in a February 21, 2012 progress note that she could not determine whether appellant’s
condition stabilized.

4

provide additional medical records regarding his return to work, the employing establishment
terminated his employment.7
In an August 10, 2012 statement, appellant disputed Mr. Benz and Ms. George’s
accounts. He asserted that Mr. Benz was a poor supervisor and that he was unlawfully
terminated because he utilized FMLA leave.
On September 26, 2012 OWCP’s hearing representative affirmed the March 23, 2012
decision.
Appellant requested reconsideration on October 22, 2012 and accused OWCP of bias.
He also provided an October 10, 2012 note from Dr. Rodriguez stating that “[his] medical
condition is related to his regular duties.”
On January 15, 2013 OWCP denied modification of the September 26, 2012 decision.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional or stress-related condition in
the performance of duty, an employee must submit: (1) factual evidence identifying employment
factors or incidents alleged to have caused or contributed to the condition; (2) medical evidence
establishing that he or she has an emotional or stress-related disorder; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to the condition. If a claimant implicates a factor of employment, OWCP should
determine whether the evidence of record substantiates that factor. Allegations alone are
insufficient to establish a factual basis for an emotional condition claim and must be supported
with probative and reliable evidence. If a compensable factor of employment is established,
OWCP must then base its decision on an analysis of the medical evidence.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. In the case of Lillian Cutler,9 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. When an employee experiences emotional stress in carrying
out his or her employment duties and the medical evidence establishes that a disability resulted
from this emotional reaction, the disability is generally regarded as due to an injury arising out of
and in the course of employment. This holds true when the disability results from an emotional
reaction to a special assignment or other requirement imposed by the employing establishment or
by the nature of the work. On the other hand, there are disabilities that have some causal
connection with the claimant’s employment but nonetheless fall outside FECA’s coverage
because they are found not to have arisen out of employment, such as when a disability results

7

Ms. George noted that appellant filed an appeal of his termination with the Merit Systems Protection Board.

8

G.S., Docket No. 09-764 (issued December 18, 2009).

9

28 ECAB 125 (1976).

5

from a fear of a reduction in force or frustration from not being permitted to work in a particular
environment or hold a particular position.10
Administrative and personnel matters, although generally related to the claimant’s
employment, are administrative functions of the employing establishment rather than the regular
or specially-assigned work duties of the claimant and are not covered under FECA.11 However,
the Board has held that an administrative or personnel matter will be considered an employment
factor where the evidence discloses error or abuse on the part of the employing agency. In
determining whether the employing establishment erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.12
ANALYSIS
Appellant claimed that he sustained an emotional condition as a result of stress on the
job. The Board must initially review whether the claimed incidents or activities constitute
compensable factors under the provisions of FECA.
Appellant alleged that his emotional condition was due, in part, to increased duties
involving inventory, contracts and budgets as well as frequent meetings. Mr. Benz, on the other
hand, maintained that the workload was the same as in prior years. As noted, allegations alone
are insufficient to establish a factual basis for an emotional condition claim and must be
supported with probative and reliable evidence. In this case, appellant did not provide sufficient
evidence to establish a factual basis for his allegation. He neither offered evidence showing that
he performed an inordinate amount of work nor detailed how performance of his job duties
induced stress. Thus, the Board finds that appellant did not establish a compensable employment
factor under Cutler.13
Essentially, appellant attributed his emotional condition to particular acts and omissions
by management. An employee’s complaints about the manner in which a supervisor or manager
performs his or her duties or the manner in which he or she exercises his or her discretion
ordinarily fall outside the scope of coverage provided by FECA. This principle recognizes that a
supervisor or manager must generally be allowed to perform his or her duties and employees will
sometimes dislike the actions taken. However, absent evidence of error or abuse, mere
disagreement or dislike of a supervisory or managerial action will not be compensable.14

10

William E. Seare, 47 ECAB 663 (1996).

11

M.C., Docket No. 10-1628 (issued June 8, 2011); Matilda R. Wyatt, 52 ECAB 421 (2001).

12

M.D., 59 ECAB 211 (2007); Ruth S. Johnson, 46 ECAB 237 (1994). See also Thomas D. McEuen, 41 ECAB
387 (1990), reaff’d on recon., 42 ECAB 566 (1991).
13

See supra note 9.

14

T.G., 58 ECAB 189 (2006); Marguerite J. Toland, 52 ECAB 294 (2001).

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Appellant alleged that Mr. Benz provided inadequate training, failed to provide written
feedback or verbal counseling, issued several letters of concern for substandard performance,
rescheduled deadlines and mistakenly informed him that he did not accrue sufficient leave time
to attend to his wife’s childbirth; that Mr. Benz and Mr. Knutson criticized him about a network
security software order; and that management denied each of his transfer requests. None of these
purported incidents, however, implicated a compensable factor of employment. The Board has
held that training,15 monitoring of an employee’s job performance,16 performance appraisals,17
assignment of deadlines,18 leave matters,19 criticism and reprimands20 and job transfers21 are
administrative functions of the employing establishment rather than duties of the employee.
Unless the evidence discloses error or abuse on the part of the employing establishment, they are
not compensable employment factors. In this case, the evidence is not sufficient to establish that
Mr. Benz, Mr. Knutson, or management in general acted in an erroneous or abusive manner.
Appellant also asserted that Mr. Benz was a poor supervisor. This relates to an employee’s
dissatisfaction with perceived poor management and constitutes frustration from not being able
to work in a particular environment or to hold a particular position that is not compensable under
FECA.22
Appellant alleged that Mr. Combs failed to call for an ambulance when he sustained a
panic attack on September 28, 2011. A supervisor’s failure to take appropriate actions to correct
potentially hazardous situation, which would fall into the category of administrative or personnel
functions, is a compensable factor of employment if the factual circumstances established error
or abuse by the superior in dealing with the claimant.23 In this case, appellant did not present
probative and reliable factual evidence to corroborate that this event transpired.
Appellant also alleged that the employing establishment violated the labor agreement on
several occasions. First, Mr. Benz and Mr. Knutson forced him to work overtime on
June 24, 2011. Second, Mr. Benz signed the letter of concern on October 13, 2011 after a union
representative expressly advised him to afford appellant 60 days to resolve the performance

15

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

16

James P. Inzetta, Docket No. 03-1899 (issued October 27, 2003).

17

David C. Lindsey, Jr., 56 ECAB 263 (2005).

18

A.S., Docket No. 08-2276 (issued July 17, 2009).

19

J.C., 58 ECAB 594 (2007).

20

Roger W. Robinson, 54 ECAB 846 (2003).

21

James W. Griffin, 45 ECAB 774 (1994).

22

Cyndia R. Harrill, 55 ECAB 522, 529 (2004).

23

Kim A. Baranosky, Docket No. 03-678 (issued July 9, 2004).

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issues. Last, all of appellant’s requests for union representation at meetings on October 4, 7 and
31, 2011 were denied. While assignment of overtime,24 performance appraisals25 and
disciplinary actions26 are administrative functions of the employing establishment rather than
duties of the employee, violation of the collective bargaining agreement can show error or abuse
on the part of the employer.27 In this case, appellant did not present probative and reliable
factual evidence to substantiate that these events occurred.28
Appellant alleged that Mr. Benz ridiculed his health problems at work as well as his
preexisting post-traumatic stress disorder related to military service, showed him triple bypass
surgical scars and retaliated against appellant for complaining to human resources for
mistreatment; that Mr. Benz and Mr. Knutson spoke to him in a rude and condescending manner;
and that management unlawfully terminated him because he utilized FMLA leave. To the extent
that disputes and incidents alleged as constituting harassment, discrimination or retaliation by
coworkers and supervisors are established as occurring and arising from appellant’s performance
of his or her regular duties, these could constitute employment factors.29 Nonetheless, for
harassment or discrimination to give rise to a compensable disability, there must be evidence that
harassment or discrimination did in fact occur. Mere perceptions of harassment or
discrimination are not compensable under FECA.30 In this case, appellant did not present
witness statements, administrative findings or decisions or other documentation corroborating
that Mr. Benz, Mr. Knutson or management harassed or treated him disparately. In the absence
of probative and reliable evidence establishing compensable factor of employment, he failed to
discharge his burden of proof.
Appellant contends on appeal that the medical evidence established his emotional
condition claim. Because he did not establish a compensable factor of employment, a review of
the medical evidence is unnecessary.31
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.

24

Ronald Potter, 51 ECAB 688 (2000).

25

Supra note 17.

26

Supra note 8; McEuen, supra note 12.

27

Ronald E. Cardin, Docket No. 03-181 (issued April 25, 2003); Carlos Tamayo, Docket No. 96-2438 (issued
April 27, 1999).
28

The Board notes that a June 27, 2011 e-mail from Ms. O’Haver, the union steward, informed Mr. Benz that “an
employee was mandated to work overtime within an hour prior to their departure” in violation of Article 19, Section
5 of the labor agreement. See supra note 4. However, this e-mail did not identify appellant as this employee.
29

See, e.g., Mary J. Summers, 55 ECAB 730 (2004). Kathleen D. Walker, 42 ECAB 603, 608 (1991).

30

Summers, id.; Donna Faye Cardwell, 41 ECAB 730, 741 (1990).

31

See Lori A. Facey, 55 ECAB 217 (2004).

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CONCLUSION
The Board finds that appellant did not establish that he sustained an emotional condition
while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2013 and September 26, 2012
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 19, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
SMALL BUSINESS ADMINISTRATION,
Washington, D.C., Employer
__________________________________________

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

Docket No. 09-1154
Issued: February 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 26, 2009 appellant filed a timely appeal from a December 22, 2008 decision of
the Office of Workers’ Compensation Programs, which found an overpayment in the amount of
$1,933.37. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this claim.1
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $1,933.37; and (2) whether the Office properly determined that
appellant was not entitled to waiver.

1

The record contains Office decisions dated March 26, December 19 and 30, 2008 and January 9 and 12, 2009.
Appellant did not appeal from these decisions.

FACTUAL HISTORY
On November 14, 2005 appellant, then a 40-year-old clerk, filed an occupational disease
claim for a left arm condition sustained in the performance of duty. The Office accepted her
claim for lateral epicondylitis of the right elbow; ulnar nerve entrapment at the right elbow; and
medial epicondylitis. On October 31, 2008 it accepted ulnar nerve entrapment neuropathy in the
left elbow.2 Appellant received wage-loss compensation.
On February 27, 2006 appellant completed a Form CA-7 and indicated that she had a
dependent son born on March 14, 1988. On May 24, 2006 the Office received a CA-7 form from
appellant who listed as dependents her son and a granddaughter born October 7, 2004. On
August 9, 2007 appellant completed a CA-7 form and indicated that she had two granddaughters
as dependants. She claimed wage-loss compensation beginning July 8, 2007 for leave without
pay. Appellant submitted additional CA-7 forms claiming compensation. The record establishes
that she received wage-loss compensation at the three-fourths augmented rate from July 8, 2007
to September 13, 2008.
On September 24, 2008 the Office contacted appellant to clarify whether she should have
received wage-loss compensation at the three-fourths augmented rate. It confirmed that her son
did not attend college and that she had not adopted either of her granddaughters. Appellant
related that she raised her granddaughters, who lived with her and claimed them as dependants
on her taxes.
In a November 6, 2008 overpayment worksheet, the Office determined that appellant had
received compensation at an augmented rate from July 8, 2007 to September 13, 2008 when she
had no eligible dependents. As her son had turned 18 on March 14, 2006 and was not a student
pursuing a full course of study, he was no longer an eligible dependent after that date. As of
July 8, 2007, appellant claimed her grandchildren as dependents and she received compensation
at an incorrect pay rate. The Office noted that she was paid $19,904.99 at the augmented pay
rate but should have received $17,971.62 at the statutory 2/3rds pay rate. The difference
represented an overpayment in the amount of $1,933.37.
On November 6, 2008 the Office issued a preliminary determination that appellant was
not at fault in the creation of an overpayment of compensation from July 8, 2007 through
September 13, 2008 in the amount of $1,933.37. It found that she was not aware that the Office
had overpaid compensation, as she had correctly listed the dates of birth and names of her
granddaughters. The amount of the overpayment represented the difference between the
compensation paid to appellant at the augmented pay rate minus the compensation due at the
basic rate. Appellant was advised of her right to challenge the amount of the overpayment or
request a waiver within 30 days. If she sought waiver of the overpayment, she was directed to
submit financial information by completing an overpayment recovery questionnaire within
30 days.
On December 10, 2008 appellant contacted the Office by telephone to discuss an
extension of time and whether it would accept her response after the deadline. The issue of
2

File No. xxxxxx593. The Office doubled the claims under master claim file number xxxxxx027.

2

dependency was explained to appellant concerning her grandchildren. The Office noted that she
advised that she would complete the overpayment forms and submit them within a few days. No
additional evidence was received within the allotted time.
In a December 22, 2008 decision, the Office finalized the overpayment. It noted that no
financial documentation was submitted to support waiver of the overpayment. The Office
determined that the overpayment should be recovered by requesting that appellant forward a
check in the amount of $1,933.37 within 30 days. If appellant was unable to refund the entire
overpayment immediately, she was advised to contact the Office so that appropriate
arrangements for recovery could be made.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides that the United States shall pay
compensation for the disability or death of an employee resulting from personal injury sustained
while in the performance of her duty.3 When an overpayment has been made to an individual
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.4
The basic rate of compensation is 66 2/3 percent of the injured employee’s monthly pay.
Where the employee has one or more eligible dependents, she is entitled to have her basic
compensation augmented at the rate of 8 1/3 percent or a total of 75 percent.5 A disabled
employee is entitled to compensation equal to two-thirds of her monthly pay, if disability is total
or two-thirds of the difference between her monthly pay and her monthly wage-earning capacity,
if disability is partial.6 A disabled employee with one or more dependents is entitled to have the
basic compensation rate for disability augmented to three-fourths of her monthly pay.7
Section 8101(9) defines the term “child” to include stepchildren, adopted children and
posthumous children. Section 8110 provides augmented compensation benefits for dependents.
It does not include a grandchild as a dependent. The Act defines child as one who is under
18 years of age or over that age and incapable of self-support.8 The term dependent also includes
a student, defined as a child under the age of 23 years of age who has not completed four years
of education beyond high school and is pursuing a full-time course of study.9

3

5 U.S.C. § 8102(a).

4

Id. at § 8129(a).

5

See Stephen R. Cofrancesco, 57 ECAB 662 (2006); Jacqueline S. Harris, 56 ECAB 252 (2005).

6

5 U.S.C. §§ 8105(a), 8106(a).

7

Id. at § 8110(b).

8

Id. at § 8101(9).

9

Id. at § 8101(a).

3

If a claimant receives augmented compensation during a period where she has no eligible
dependents, the difference between the compensation she was entitled to receive at the 66 2/3
percent compensation rate and the augment compensation received at the 75 percent rate
constitutes an overpayment of compensation.10
ANALYSIS -- ISSUE 1
The Office paid appellant compensation at the augmented three-fourths rate from July 8,
2007 to September 13, 2008. During this period, she claimed her granddaughters as her
dependents. As noted, however, the Act defines the term “child” to include an adopted child.
Appellant did not establish that she had adopted her grandchildren. Section 8110 does not
include a grandchild as a dependent for purposes of augmented compensation.11 For this reason,
appellant did not have any eligible dependents during the period of the overpayment.12 Because
she did not have any eligible dependents while in receipt of augmented compensation, she
received compensation to which she was not entitled and constitutes an overpayment.
The Office paid compensation of $19,904.99 from July 8, 2007 to September 13, 2008 at
the augmented rate for dependents. Appellant should have received compensation at the
statutory 2/3rds basic rate in the amount of $17,971.62. The Board finds that the Office properly
determined that she received an overpayment of $1,933.37 from July 8, 2007 to
September 13, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b). Adjustment or recovery by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of the Act or would be
against equity and good conscience.13
Office regulations, at 20 C.F.R. § 10.438, state that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Act or be against equity and good conscience.
10

Ralph P. Beachum, Sr., 55 ECAB 442 (2004) (the Board held that as the claimant received compensation at the
augmented rate for certain periods, even though he had no dependents, he received an overpayment of
compensation). See also Diana L. Booth, 52 ECAB 370 (2001).
11

Jacqueline S. Harris, 56 ECAB 252 (2005). See 5 U.S.C. § 8110.

12

As appellant’s son reached the age of 18 as of March 14, 2006 and did not pursue a course of full-time study
after his 18th birthday and there is no evidence that he was disabled, he no longer qualified as an eligible dependent.
See Ralph P. Beachum, Sr., 55 ECAB 442 (2004).
13

5 U.S.C. § 8129.

4

This information will also be used to determine the repayment schedule, if necessary. Failure to
submit the requested information within 30 days of the request shall result in denial of waiver
and no further request for waiver shall be considered until the requested information is
furnished.14
ANALYSIS -- ISSUE 2
The Office found appellant to be without fault in creating the $1,933.37 overpayment as
she had listed her grandchildren as dependents. Appellant bears responsibility for providing the
financial information necessary to support a request for waiver. The Office requested that she
provide financial information and submit an overpayment recovery questionnaire within 30 days
of the preliminary overpayment notification. Appellant did not submit the requested
documentation within the 30-day time period. The Office applied its regulatory authority to
determine that her failure to submit the requested information resulted in the denial of waiver.
Under the implementing federal regulations, the Board finds that the Office properly denied
waiver of the overpayment pursuant to 20 C.F.R. § 10.438(b).
On appeal, appellant contended that the overpayment should be waived as it constituted a
financial hardship and submitted additional evidence. As noted, she failed to provide the
requested information to the Office pursuant to its regulations. The Board does not have
jurisdiction to consider evidence for the first time on appeal.15
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment in the amount of $1,933.37 and that she was not entitled to waiver.

14

20 C.F.R. § 10.438. See Madelyn Y. Grant, 57 ECAB 533 (2006).

15

Id. at § 501.2(c); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

5

ORDER
IT IS HEREBY ORDERED THAT the December 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.Q., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SAN FRANCISCO VETERANS
ADMINISTRATION HEALTH,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 16-1563
Issued: January 12, 2017

Case Submitted on the Record

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

JURISDICTION
On July 26, 2016 appellant filed a timely appeal from a June 21, 2016 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 the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to a February 23, 2016 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 10, 2016 appellant, then a 47-year-old medical instrument technician, filed a
traumatic injury claim (Form CA-1), alleging that on February 23, 2016, while working in the
hemodialysis unit, she was disinfecting dialysis machines and felt lower back pain. She stopped
work on March 11, 2016.
Appellant was treated by an employing establishment nurse practitioner on March 10,
2016 for low back pain and left thigh numbness which began on February 23, 2016. She
reported pushing and pulling a dialysis machine from room to room while cleaning it. The nurse
practitioner diagnosed acute low back pain with intermittent thigh numbness which began on
February 23, 2016 while appellant was moving heavy equipment at work.
Appellant submitted a March 14, 2016 California Doctor’s First Report of Occupational
Injury or Illness prepared by Dr. Sarah J. Janssen, Board-certified in occupational medicine, who
treated appellant for a lower back strain. She reported that on February 23, 2016 appellant was
moving a 500-pound machine as part of her daily work when she felt numbness in her left thigh
and weakness in her lower back. She noted appellant’s history was significant for lower back
pain and right leg symptoms. Dr. Janssen indicated that a magnetic resonance imaging (MRI)
scan of the lumbar spine dated September 15, 2014 revealed multilevel lumbar degenerative disc
disease, most notably at L4-5. Findings upon examination revealed tenderness of the thoracic
spine, lumbar spine at L3-5 and paralumbar spine, decreased range of motion of the lumbar
spine, and paraesthesias. Dr. Janssen diagnosed lumbar disc degeneration with neurological
manifestation and lumbar muscle strain. She recommended physical therapy and modified duty.
Dr. Janssen opined that the underlying cause of appellant’s symptoms was lumbar spondylosis, a
nonindustrial condition. However, she advised that, but for the employment activities, the
preexisting condition would not have become disabling or needed medical treatment. In an
industrial work status report dated March 14, 2016, Dr. Janssen noted that appellant could return
to work modified duty.
In a primary treating physician’s progress report dated April 4, 2016, Dr. Janssen treated
appellant for persistent low back pain, radicular symptoms, numbness, and tingling. Appellant
reported her job involved frequent heavy pushing, pulling, and patient transfers. She indicated
that her restrictions could not be accommodated and therefore she was not working. Dr. Janssen
noted appellant’s history was significant for chronic low back pain. Examination findings
included tenderness to palpation of the parathoracic, lumbar, and paralumbar areas and decreased
range of motion. Dr. Janssen noted a September 15, 2014 lumbar spine MRI scan revealed
degenerative and discogenic disease at L4-5 with grade 1 anterolisthesis, moderate broad-based
posterior disc bulge, facet hypertrophy, and mild bilateral neural foraminal narrowing. She
diagnosed lumbar disc degeneration with neurological manifestation and lumbar muscle strain.
Dr. Janssen advised that appellant was making slow progress and prescribed a prednisone taper,
Tramadol, and physical therapy. She opined that the underlying cause of appellant’s symptoms
was lumbar spondylosis, a nonindustrial condition; however, but for the employment activities,
the preexisting condition would not have become disabling or needed medical treatment.
In an industrial work status report dated April 4, 2016, Dr. Saquib Syed Rizvi, a Boardcertified internist, diagnosed lumbar disc degeneration with neurological manifestation and

2

lumbar muscle strain. He noted that appellant could work modified duty from April 4 to 28,
2016 and attended physical therapy.
In a primary treating physician’s progress report dated April 28, 2016, Dr. Janssen noted
that appellant presented with minimal improvement since the initial date of injury. Physical
examination was unchanged. Dr. Janssen noted an MRI scan of the lumbar spine dated
February 28, 2016 showed multilevel degenerative change of the lumbar spine most notably at
L4-5, crowding of the lateral recesses, and probable abutment of the traversing bilateral L5 nerve
roots. She diagnosed lumbar disc degeneration, neurological manifestation, and lumbar muscle
strain. Dr. Janssen noted that appellant had delayed recovery with minimal improvement in
radicular symptoms. She recommended acupuncture and physical therapy. Dr. Janssen returned
appellant to modified work on April 28, 2016.
By letter dated May 10, 2016, OWCP advised appellant that her claim had originally
been received as a simple, uncontroverted case which resulted in minimal or no time loss from
work. It indicated that appellant’s claim was administratively handled to allow medical
payments up to $1,500.00, but the merits of the claim had not been formally adjudicated. OWCP
advised that because a claim for wage loss was received her claim would be formally
adjudicated. It advised appellant of the evidence needed to establish her claim, including a
comprehensive medical report from her treating physician which included a reasoned
explanation as to how the specific work factors or incidents had contributed to her claimed
lumbar condition.
Appellant submitted an incident report and related that, while working in the
hemodialysis unit on February 23, 2016, she pulled and repositioned eight dialysis machines and
several heavy tables, which caused radiating pain in her low back with numbness in her left
thigh. She ignored the pain and continued to work.
In work status reports dated April 28, May 19, June 3 and 13, 2016, Dr. Janssen
diagnosed lumbar disc degeneration with neurological manifestation, lumbar muscle strain and
urinary incontinence. She continued appellant on modified duty. In primary treating physician’s
progress reports dated May 19 and June 3, 2016, Dr. Janssen advised that appellant presented
with minimal improvement since the initial date of injury with three episodes of urinary
incontinence. Physical examination was unchanged. Dr. Janssen diagnosed lumbar disc
degeneration with neurological manifestation and lumbar muscle strain. She noted that appellant
had minimal improvement in radicular symptoms with physical therapy and prednisone taper.
Dr. Janssen recommended physical therapy, acupuncture, and modified work duties.
In a primary treating physician’s progress report dated June 7, 2016, Dr. Rizvi noted that
appellant presented with minimal improvement since the initial date of injury with episodes of
incontinence. He noted that the physical examination was unchanged and diagnosed lumbar disc
degeneration with neurological manifestation and lumbar muscle strain. Dr. Rizvi recommended
physical therapy, acupuncture, and modified work duties. Also submitted were physical therapy
reports from May 20 to June 14, 2016.

3

By decision dated June 21, 2016, OWCP denied appellant’s claim because the medical
evidence of record was insufficient to establish that the medical condition was causally related to
the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
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 medical evidence
to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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.4
ANALYSIS
OWCP accepted that on February 23, 2016 appellant was working in the hemodialysis
unit and pulled and repositioned dialysis machines and several heavy tables. Appellant was
diagnosed with degenerative and discogenic disease at L4-5 with grade 1 anterolisthesis,
moderate broad-based posterior disc bulge, facet hypertrophy with neurological manifestation,
and lumbar muscle strain. However, the Board finds that appellant has not submitted sufficient
medical evidence to establish that these work activities caused or aggravated her diagnosed low
back conditions.
Appellant was treated by Dr. Janssen on March 14, 2016 who diagnosed lumbar disc
degeneration with neurological manifestation and lumbar muscle strain. She reported that on
February 23, 2016 she was moving a 500-pound machine as part of her daily work when she felt
numbness in her left thigh and weakness in her lower back. Dr. Janssen noted a September 2014
2

Gary J. Watling, 52 ECAB 357 (2001).

3

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

4

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

4

lumbar MRI scan showed multilevel lumbar degenerative disc disease, most notably at L4-5.
She opined that the underlying cause of appellant’s symptoms was lumbar spondylosis, a
nonindustrial condition. However, Dr. Janssen advised that, but for the employment activities
stated above, the preexisting condition would not have become disabling or needed medical
treatment. The Board finds that, although Dr. Janssen supported causal relationship, she did not
provide sufficient medical rationale explaining the basis of her conclusory opinion regarding the
causal relationship between appellant’s lumbar condition and the factors of employment.5
Dr. Janssen did not explain the process by which pulling and repositioning dialysis machines and
heavy tables would cause the diagnosed condition and why such condition would not be due to
any nonwork factors such as age-related degenerative changes. Thus, these reports are
insufficient to meet appellant’s burden of proof.
Similarly, Dr. Janssen provided other reports from April 4 to June 3, 2016, where she
diagnosed lumbar disc degeneration with neurological manifestation and lumbar muscle strain.
She noted appellant’s history was significant for degenerative and discogenic disease at L4-5.
Dr. Janssen opined that the underlying cause of appellant’s symptoms was lumbar spondylosis, a
nonindustrial condition, but advised that appellant’s condition would not have become disabling
or require medical treatment but for employment activities. Again, she did not explain why such
activity would result in a causal relationship to the diagnosed condition. Dr. Janssen did not
adequately explain why moving dialysis machines and heavy tables was a competent cause or
contributor to appellant’s diagnosed lumbar conditions, specifically, when appellant had a
preexisting degenerative disease on multiple lumbar levels.6 She did not explain the medical
reasoning, or rationale, that formed the basis of her conclusion on causal relationship.
Dr. Janssen provided other work status reports dated March 14 to June 13, 2016 who
diagnosed lumbar disc degeneration with neurological manifestation, lumbar muscle strain, and
urinary incontinence. However, these reports did not specifically address whether appellant’s
employment activities caused or aggravated the diagnosed medical conditions. These reports are
of limited probative value.7
In an industrial work status report dated April 4, 2016, Dr. Rizvi diagnosed lumbar disc
degeneration with neurological manifestation and lumbar muscle strain. He noted that appellant
could work modified duty from April 4 to 28, 2016. Similarly, in a June 7, 2016 report,
Dr. Rizvi noted that appellant presented with minimal improvement since the initial date of
injury with episodes of incontinence. He diagnosed lumbar disc degeneration with neurological
manifestation and lumbar muscle strain. Dr. Rizvi returned appellant to modified work. These
reports are insufficient to establish the claim as Dr. Rizvi did not provide a history of injury8 or
5

Id.

6

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).
7

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).

5

specifically address whether appellant’s employment activities had caused or aggravated a
diagnosed medical condition.9
Appellant submitted a report from a nurse practitioner dated March 10, 2016. Also
submitted were physical therapy reports from May 20 to June 14, 2016. The Board has held that
reports signed by a nurse or physical therapist are not considered medical evidence as a nurse
and physical therapist are not physicians under FECA.10 Thus, the treatment records from the
nurse and physical therapist are of no probative medical value in establishing appellant’s claim.
The remainder of the medical evidence, including diagnostic test reports, is of limited
probative value as it does not provide an opinion on the causal relationship between the
February 23, 2016 work incident and appellant’s diagnosed medical conditions.11
On appeal appellant asserts that OWCP improperly denied the claim and that she
submitted sufficient medical evidence to establish that on February 23, 2016 she injured her
lumbar spine while pushing and pulling dialysis machines and other equipment. As found above,
the medical evidence does not establish that appellant’s diagnosed conditions are causally related
to her employment. Appellant has not submitted a physician’s report, based on an accurate
history, which explains how work activities on February 23, 2016 caused or aggravated a lumbar
condition. She has failed to meet her burden of proof.
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 did not meet her burden of proof to establish an injury
causally related to a February 23, 2016 employment incident.

9

See A.D., supra note 7.

10

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses,
and physical therapists are not competent to render a medical opinion under the FECA); 5 U.S.C. § 8101(2) (this
subsection defines a ‘‘physician’’ as surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law).
11

See A.D., supra note 7.

6

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7