United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Porthill, ID, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1336
Issued: March 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 4, 2021 appellant filed a timely appeal from March 16 and August 30, 2021
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 this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On July 30, 2019 appellant, then a 54-year-old customs and border patrol officer, filed an
occupational disease claim (Form CA-2) alleging that he sustained Valley Fever
(coccidioidomycosis) causally related to factors of his federal employment while deployed to the
1

5 U.S.C. § 8101 et seq.

southern border. He noted that he first became aware of his claimed condition and its relation to
his federal employment on July 12, 2019. On July 12, 2019 Dr. Jonathan Klaucke, a Boardcertified orthopedic surgeon, performed left ankle surgery, later authorized by OWCP, which
included incision, drainage, and washing out of the left subtalar and tibiotalar joints. Appellant
stopped work on the date of the surgery and returned to work in late-July 2019 in a light-duty
position. Dr. Klaucke provided follow-up care until late-December 2019. After development of
the evidence, OWCP accepted appellant’s claim for Valley Fever and septic arthritis of the left
ankle.
On May 3, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to his accepted work-related conditions.
In a May 11, 2020 development letter, OWCP requested that appellant submit an
impairment rating report, which applied the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 It afforded
him 30 days to submit the requested evidence.
OWCP subsequently received a May 18, 2020 letter in which appellant requested that
OWCP send him for a second opinion examination and evaluation to assess his permanent
impairment.
On December 14, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for a second opinion examination and evaluation with Dr. Steven Nadler, a Boardcertified orthopedic surgeon. It requested that Dr. Nadler provide an opinion on the permanent
impairment of appellant’s left lower extremity under the standards of the sixth edition of the
A.M.A., Guides.
In a January 28, 2021 report, Dr. Nadler discussed appellant’s factual and medical history
and reported the findings of his physical examination. He noted that appellant had a well-healed
scar on his left ankle and indicated that the septic arthritis would affect the left ankle joint and
leave patients with residual symptoms. Dr. Nadler opined that appellant reached maximum
medical improvement (MMI) on April 29, 2020 and indicated that he had ordered weight-bearing
x-rays of the ankles to determine if there was any loss of cartilage space. In a February 4, 2021
addendum report, he concluded that, based on his examination and review of x-ray testing,
appellant had no impairment of the left lower extremity due to his accepted left ankle conditions
under the sixth edition of the A.M.A., Guides. Dr. Nadler indicated that February 1, 2021 x-ray
testing of the right ankle revealed that the joint space was preserved and noted, “[b]ased on this
ﬁnding that the joint space is preserved and equal to that of the left, the patient is not entitled to an
impairment rating at this time as a result of his injury at work.”
On February 8, 2021 OWCP referred appellant’s case to Dr. David Krohn, a Boardcertified internist serving as an OWCP district medical adviser (DMA). It requested that Dr. Krohn

2

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

2

review the evidence of record, including Dr. Nadler’s reports, and provide an opinion on left lower
extremity permanent impairment under the standards of the sixth edition of the A.M.A., Guides.
In a March 11, 2021 report, Dr. Krohn indicated his agreement with Dr. Nadler that
appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides. He
explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only be
assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He noted that weight-bearing
x-rays of the ankles ordered by Dr. Nadler on February 1, 2021 demonstrated that the articular
surfaces were smooth with normal cartilage intervals of the tibiotalar and subtalar joints.
Dr. Krohn opined that, therefore, appellant had preserved joint spaces without radiographic
evidence of arthritis. There was no narrowing of the cartilage interval on the left compared with
the right. Dr. Krohn indicated that, given that the radiologist’s interpretation of the left ankle
x-rays demonstrated normal appearing ankle joints symmetrically, “impairment for arthritis of the
subtalar and tibiotalar joints each is Class 0, correlating with zero percent impairment of the left
lower extremity” under Table 16-2 of the sixth edition of the A.M.A., Guides.
By decision dated March 16, 2021, OWCP denied appellant’s schedule award claim,
finding that the weight of the medical opinion evidence regarding left lower extremity permanent
impairment rested with the opinions of Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the
DMA.
On March 23, 2021 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings Review. During the hearing held on July 7, 2021, he testified that
he still experienced pain in his left ankle.
By decision dated August 30, 2021, OWCP’s hearing representative affirmed the
March 16, 2021 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations 4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall b e determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants and the Board has

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

concurred in such adoption.5 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used
to calculate schedule awards. 6
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the ankle, the relevant portion of the leg for the present case, reference
is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501. 7 After the class of
diagnosis (CDX) is determined from Table 16-1 (including identification of a default grade value),
the net adjustment formula is applied utilizing modifiers for functional history, physical
examination, and clinical studies.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a January 28, 2021 report, OWCP’s referral physician, Dr. Nadler, discussed appellant’s
factual and medical history and reported the findings of his physical examination. He noted that
appellant had a well-healed scar on his left ankle and opined that he reached MMI on
April 29, 2020. Dr. Nadler ordered weight-bearing x-rays of the ankles to determine if there was
any loss of cartilage space. In a February 4, 2021 addendum report, he concluded that, based on
his examination and review of x-ray testing, appellant had no permanent impairment of the left
lower extremity due to his accepted left ankle conditions under the six th edition of the A.M.A.,
Guides. Dr. Nadler indicated that February 1, 2021 x-ray testing of the right ankle revealed that
the joint space was preserved and noted, “[b]ased on this ﬁnding that the joint space is preserved
and equal to that of the left, the patient is not entitled to an impairment rating at this time as a result
of his injury at work.”
In his March 11, 2021 report, DMA Dr. Krohn indicated his agreement with Dr. Nadler
that appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides.
He explained that, under Table 16-2 on page 506, permanent impairment for arthritis could only
be assigned when there was x-ray evidence of mild osteophytes with impingement, full-thickness
cartilage defect, cystic changes on one side of the joint, focal areas of avascular necrosis, or
ununited osteochondral fracture. Dr. Krohn added that, alternately, subtalar joint impairment
could be assigned for a cartilage interval of less than two millimeters or, with respect to the
tibiotalar joint, for a cartilage interval of less than three millimeters. He indicated that, given that
the radiologist’s interpretation of the left ankle x-rays demonstrated normal appearing ankle joints

5

Id.; see V.J., Docket No. 1789 (issued April 8, 2020); Jacqueline S. Harris, 54 ECAB 139 (2002).

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
7

See A.M.A., Guides 501-08 (6 th ed. 2009).

8

Id. at 515-22.

4

symmetrically, “impairment for arthritis of the subtalar and tibiotalar joints each is Class 0,
correlating with 0 [percent] impairment of the left lower extremity” under Table 16-2.
Dr. Nadler, OWCP’s referral physician, and Dr. Krohn, the DMA properly applied the
A.M.A., Guides in finding that appellant had no permanent impairment of a scheduled member or
function of the body.9 As their reports were detailed, well rationalized, and based on a proper
factual background and application of the sixth edition of the A.M.A., Guides, their opinions
represent the weight of the medical evidence. 10
As there is no other current medical evidence in conformance with the sixth edition of the
A.M.A., Guides establishing permanent impairment of a scheduled member or function of the
body, the Board finds that appellant has met not his burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

9

See B.B., Docket No. 20-1187 (issued November 18, 2021); M.D., Docket No. 20-0007 (issued May 13, 2020);
M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket
No. 18-1387 (issued February 1, 2019).
10

See B.B., id., D.S., Docket No. 18-1816 (issued June 20, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the March 16 and August 30, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-25
Issued: July 19, 2011

Case Submitted on the Record

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

JURISDICTION
On October 4, 2010 appellant, through his attorney, filed a timely appeal from a
September 8, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
granting him a schedule award. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.2
ISSUE
The issue is whether appellant has more than a five percent permanent impairment of the
right upper extremity, for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

In a decision dated May 18, 2010, OWCP denied modification of an October 2, 2008 decision terminating
appellant’s compensation benefits. Appellant has not appealed this decision and it is not before the Board at this
time. See 20 C.F.R. § 501.3(a); N.M., 58 ECAB 273 (2007).

FACTUAL HISTORY
On January 8, 2007 appellant, then a 54-year-old clerk, filed an occupational disease
claim alleging that he sustained a right wrist condition causally related to factors of his federal
employment. OWCP accepted the claim for right carpal tunnel syndrome.3 On September 18,
2007 appellant underwent a right median nerve decompression, transverse carpal ligament
release and median nerve neurolysis. OWCP accepted that he sustained a recurrence of
disability on September 18, 2007 and paid him wage-loss compensation. Appellant returned to
modified employment on January 7, 2008.
In an impairment evaluation dated July 21, 2008, Dr. David Weiss, an osteopath,
determined that appellant had 31 percent right upper extremity impairment due to a sensory
deficit of the right median nerve. He applied the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides) in reaching his impairment
rating. On September 20, 2008 appellant filed a claim for a schedule award.
On October 26, 2008 OWCP’s medical adviser questioned Dr. Weiss’ sensory deficit
finding and recommended a referee examination.4 OWCP determined that a conflict in medical
opinion arose between Dr. Weiss and OWCP’s medical adviser regarding whether appellant had
an employment-related permanent impairment. It referred him to Dr. Evangelos Megariotis, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a January 12, 2009
evaluation, Dr. Megariotis opined that appellant had “no physically discernible impairments or
disabilities of the right hand or upper extremity function and has reached maximum attainable
medial and surgical benefits.” On March 25, 2009 OWCP’s medical adviser concurred with
Dr. Megariotis’ finding that appellant had no impairment.
By letter dated September 25, 2009, OWCP requested that appellant submit an
impairment evaluation in accordance with the sixth edition of the A.M.A., Guides. On June 4,
2010 Dr. Weiss applied the sixth edition of the A.M.A., Guides to the findings from his July 21,
2008 report. He noted that a February 8, 2007 electromyogram and nerve conduction study
showed motor latency of the right median nerve and loss of sensation. Dr. Weiss discussed
appellant’s complaints of pain and stiffness of the right wrist and difficulty grasping objects. He
found a positive Phalen’s test and diminished sensibility to light touch over the median nerve.
Dr. Weiss determined that the applicable diagnosis was entrapment neuropathy of the right
median nerve at the wrist under Table 15-23 on page 449 of the A.M.A., Guides. He applied a
grade modifier of 1 for test findings, a grade modifier of 3 for history and a grade modifier of 2
for decreased sensation on physical examination, to find an average grade modifier of 2, which
yielded a default impairment value of five. Dr. Weiss found that the QuickDASH (Disabilities of
3

By decision dated March 5, 2007, OWCP denied appellant’s claim after finding that the medical evidence was
insufficient to establish that he sustained an employment-related condition. On August 22, 2007 it vacated the
March 5, 2007 decision and accepted the claim for right carpal tunnel syndrome.
4

By decision dated October 2, 2008, OWCP terminated appellant’s compensation and authorization for medical
treatment effective that date. On October 7, 2008 appellant’s attorney requested a telephone hearing. In a decision
dated April 21, 2009, OWCP’s hearing representative affirmed the October 2, 2008 decision. By decision dated
January 29, 2010, OWCP denied appellant’s request for reconsideration as it was insufficient to warrant reopening
the case for further merit review. By decision dated May 18, 2010, OWCP denied modification.

2

the Arm, Shoulder and Hand) score was 45 and thus did not alter the default impairment value of
five. He concluded that appellant had a right upper extremity impairment of five percent.
On August 3, 2010 OWCP’s medical adviser reviewed Dr. Weiss’ June 4, 2010 report
and concurred with his findings.
By decision dated September 8, 2010, OWCP granted appellant a schedule award for a
five percent permanent impairment of the right upper extremity. The period of the award ran for
15.6 weeks from July 21 to November 7, 2008.
On appeal, appellant’s attorney argues that on September 18, 2008 he submitted
Dr. Weiss’ July 21, 2008 report finding a 31 percent impairment of the right arm but that OWCP
did not timely issue a schedule award. He requests that OWCP grant appellant a schedule award
for a 31 percent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.9 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.10

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

See A.M.A., Guides 449, Table 15-23.

10

Id.; see also S.H., Docket No. 10-1867 (issued April 20, 2011).

3

ANALYSIS
OWCP accepted that appellant sustained right carpal tunnel syndrome due to factors of
his federal employment. On September 18, 2007 appellant underwent a right carpal tunnel
release. In a July 21, 2008 impairment evaluation, Dr. Weiss found that appellant had a 31
percent impairment of the right upper extremity under the fifth edition of the A.M.A., Guides.
OWCP’s medical adviser disagreed with Dr. Weiss’ opinion. OWCP referred appellant to
Dr. Megariotis to resolve the conflict in medical opinion. On January 12, 2009 Dr. Mergariotis
found that appellant had no impairment of the right upper extremity.
On June 4, 2010 Dr. Weiss submitted a revised impairment evaluation based on the sixth
edition of the A.M.A., Guides. He discussed appellant’s preoperative diagnostic studies finding
motor and sensory latencies. On examination Dr. Weiss found a positive Phalen’s test on
examination and decreased sensation over the median nerve. He evaluated appellant’s right arm
under Table 15-23, relevant to determining impairments due to entrapment/compression
neuropathy. Dr. Weiss applied a grade modifier of 1 for test findings, a grade modifier of 3 for
history and a grade modifier of 2 for decreased sensation on physical examination. He averaged
these grade modifiers to find a value of two, which yielded a default value of five percent.
Dr. Weiss determined that the results of the QuickDASH score of 45 did not change the default
value and concluded that appellant had a five percent permanent impairment of the right upper
extremity. On August 3, 2010 OWCP’s medical adviser concurred with Dr. Weiss’ rating. The
Board finds that there is no evidence conforming to the sixth edition of the A.M.A., Guides
establishing greater right upper extremity impairment.
On appeal, counsel argued that appellant should have received a schedule award based on
Dr. Weiss’ impairment calculations using the fifth edition of the A.M.A., Guides. He asserts that
the delay by OWCP in issuing a schedule award decision resulting in appellant’s impairment
being rated under the sixth edition of the A.M.A., Guides. However, OWCP issued its schedule
award decision on September 8, 2010, after May 1, 2009, the effective date of the sixth edition of
the A.M.A., Guides.
In Harry D. Butler,11 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.12 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.13 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
11

43 ECAB 859 (1992).

12

Id. at 866.

13

FECA Bulletin No. 09-03 (issued March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

4

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a five percent permanent impairment of
the right upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 19, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Houston, TX,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 16-1167
Issued: December 22, 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 May 16, 2016 appellant filed an application for review of merit decisions of the
Office of Workers’ Compensation Programs (OWCP) dated December 4, 2015 and March 25,
2016 in which OWCP denied her emotional condition claim. The appeal was docketed as 161167 and adjudicated by OWCP under File No. xxxxxx163.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. On June 24, 2015 appellant, a bankruptcy specialist, filed a claim for recurrence
(Form CA-2a) under File No. xxxxxx575, accepted for major depression, recurrent episode,
moderate, and generalized anxiety disorder. On the claim form she indicated that she was able to
cope until January 11, 2015 when an acting manager who was detailed to her group relentlessly
subjected her to unwarranted disciplinary actions and threats of termination. Appellant
maintained that this intensified in February 2015 when a new territory manager was appointed.
She did not stop work at that time and began extended medical leave on July 15, 2015.
Appellant submitted additional evidence consisting of numerous emails and pleadings before the
Equal Employment Opportunity Commission relating to events that occurred beginning in 2012.
The employing establishment challenged the claim.

By letter dated October 5, 2015 OWCP informed appellant that, based on her description
of the circumstances that prompted her filing the above-recurrence claim, she was actually
claiming a new occupational disease. It advised that a new case had been created, which would
be adjudicated under File No. xxxxxx163.1 The files were doubled with File No. xxxxxx575,
becoming the master file. On December 4, 2015 OWCP denied the claim finding that she had
not identified any compensable factors of employment. Appellant thereafter requested
reconsideration and on March 25, 2016 OWCP denied modification of its December 4, 2015
decision.
The Board notes that, when OWCP converted appellant’s recurrence claim to a new
occupational disease claim for an emotional condition, it did not ask her to submit a statement
describing in detail the employment conditions or incidents she believed contributed to her
illness. The Board has long held that OWCP should inform a claimant of the need to submit a
detailed statement describing the employment factors he or she attributed as the cause of the
claimed condition.2 Moreover, OWCP procedures provide that OWCP is responsible for
requesting evidence.3 The procedures continue that the claims examiner should contact the
claimant in writing to obtain evidence and should specifically request the information needed,
tailored to the specifics of the individual case. The procedures acknowledge that a claimant’s
statement is essential to understanding the basis of an emotional condition claim.4
Proceedings under FECA are not adversarial in nature. OWCP shares in the
responsibility to develop the evidence and has an obligation to see that justice is done.5 Hence,
the Board finds that this case is not in posture for a decision as the record before the Board is
incomplete and would not permit an informed adjudication of the case by the Board. The case
must therefore be remanded to OWCP to have appellant submit a statement in which she
describes in detail the employment conditions or incidents she believed contributed to her
emotional condition claimed in 2015. After this and further development deemed necessary,
OWCP shall issue a de novo decision.

1

The claim adjudicated under File No. xxxxxx575 was submitted in 2008. Appellant was off work for a period of
time, and returned to work in October 2010. At some point she began work at a different location.
2

Norman M. Perras, 49 ECAB 191 (1997).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4.c(2)
(June 2011).
4

Id. at Chapter 2.800.5.c (June 2011)

5

P.K., Docket No. 08-2551 (issued June 2, 2009).

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 25, 2016 and December 4, 2015 are set aside and the case
remanded to OWCP for further proceedings consistent with this order of the Board.
Issued: December 22, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF THE ARMY,
1st MISSION SUPPORT COMMAND,
Fort Buchanan, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1169
Issued: September 16, 2014

Case Submitted on the Record

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

JURISDICTION
On April 23, 2014 appellant filed a timely appeal from a March 20, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
stroke in the performance of her federal duties on January 9, 2014, as alleged.
On appeal, appellant contends that she was a victim of abuse and discrimination at her
place of employment and that a mandatory meeting on January 9, 2014 caused her blood
pressure to escalate such that she suffered a stroke.

1

5 U.S.C. § 8101 et seq.

`
FACTUAL HISTORY
On February 3, 2014 appellant, then a human resources military specialist, filed a
traumatic injury claim alleging that on January 9, 2014, she received a notice of proposed
suspension at a meeting. She noted that no one from her direct chain of command was present at
the meeting. Appellant stated that her blood pressure rose and she was taken to an emergency
room where she suffered a stroke. She submitted a witness statement from Elsa Cortes who
indicated that around 1530 to 1545 hours, appellant came out of the chaplain’s conference room
after a meeting and began crying and vomiting. The chaplain called 911 as appellant had a
history of heart attacks and stroke. She tried to comfort appellant. Ms. Cortes stated that
appellant indicated that she could not feel her left side and became very cold. She noted that the
medics arrived and she accompanied appellant in an ambulance to the hospital.
In a February 6, 2014 statement, Lt. Jackeyln Ruiz, current operations officer at the
employing establishment, noted that she was present during the meeting on January 9, 2014. The
purpose of the meeting was to present appellant with a notice of proposed suspension and took
place in the chaplain’s conference room and was attended by Col. Cosme Torre, herself and
appellant. Col. Torres informed appellant at the meeting of the proposed five days’ suspension
in both English and Spanish. She stated that during the reading of the memorandum, appellant
began crying.
In support of her claim, appellant submitted a brain magnetic resonance angiogram and a
brain magnetic resonance imaging scan taken on January 24, 2014.
By letter dated February 14, 2014, OWCP requested that appellant submit further
information.
Appellant submitted the January 21, 2014 report of Dr. Rafael Rodriguez Mercado, a
Board-certified internist, who detailed his treatment of appellant on January 15, 2014.
Dr. Mercado noted that appellant had been taken to the emergency room on January 9, 2014, was
treated and discharged on January 10, 2014. He noted that she identified a stressful situation at
work and that her blood pressure rose to 230/120. Appellant experienced severe headache,
nausea, vomiting and complained of numbness in her extremities. Dr. Mercado opined that the
sudden rise in her blood pressure directly caused her to suffer her first stroke. He noted that,
according to her statement, appellant was exposed to an extreme level of stress and a tense
environment in her workplace causing an increase in her blood pressure.
In a March 11, 2014 statement, Lt. Col. Michael Gonzalez stated that, based on the
statements from Lt. Ruiz and Ms. Cortes and the medical documentation, it appeared that
appellant suffered stroke-like symptoms after meeting with the deputy commander/chief of staff
in which she received a notice of proposed suspension as a result of an investigation conducted
by the command. At that time, Col. Torres was serving in dual responsibilities as the deputy
commander and chief of staff and had oversight over staff.
By decision dated March 20, 2014, OWCP denied appellant’s claim finding that she did
not establish a compensable factor of employment.

2

`
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relationship. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.2
The Board has interpreted the phrase while in the performance of duty to be the
equivalent of the commonly found in workers’ compensation law of arising out of and in the
course of employment. In the course of employment deals with the work setting, the locale and
time of injury whereas, arising out of the employment encompasses not only the work setting but
also a causal concept, the requirement being that an employment factor caused the injury. In
addressing this issue, the Board has stated that in the compensation field, to occur in the course
of employment, in general, an injury must occur: (1) at a time when an employee may
reasonably be stated to be engaged in his or her master’s business; (2) at a place where he or she
may reasonably be expected to being connection with the employment; and (3) while he or she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.3
To establish that appellant sustained an emotional condition causally related to factors of
her federal employment, she must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition
is causally related to the identified compensable employment factors.4
In cases involving stress conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship and which working conditions are not deemed factors of
employment and may not be considered.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.6 However, the Board
2

See 5 U.S.C. § 8102(a).

3

B.S., Docket No.13-405 (issued July 18, 2013); Kathyrn S. Graham Wilburn, 49 ECAB 215, 218 (1997).

4

See R.G., Docket No. 13-818 (August 1, 2014); Kathleen D. Walker, 42 ECAB 603 (1991).

5

See Norma L. Blank, 43 ECAB 384, 389-390 (1992).

6

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

3

`
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.7
Causal relationship is a medical issue8 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,9 must be one of reasonable medical certainty,10
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.11
ANALYSIS
The Board finds that appellant failed to establish that she suffered a stroke in the
performance of her federal duties on January 9, 2014.
Appellant must establish each element of her claim. She must prove her employment, the
time, place and manner of injury, a resulting personal injury and that her injury arose in the
performance of duty.12 The Board notes that appellant’s allegations do not pertain to her regular
or specially assigned duties under Cutler.13 Rather appellant alleged that she sustained a stroke
as a result of the personnel meeting held on January 9, 2014. At that meeting, Col. Torres
presented appellant with a notice of proposed suspension. The Board has held, disciplinary
actions are an administrative function of the employer and not a duty of the employee. Such
matters are not compensable unless the evidence discloses error or abuse on the part of the
employing establishment.14 Appellant has not submitted sufficient evidence of abuse by her
supervisors as to how the meeting was conducted. Accordingly, she did not establish a
compensable factor of employment with regard to this meeting.
Because appellant failed to establish a compensable work factor, the Board finds that it is
unnecessary to address the medical evidence of record.15 Appellant has not met her burden of
proof.
7

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

8

Mary J. Briggs, 37 ECAB 578 (1986).

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979)

10

See Morris Scanlon, 11 ECAB 384, 385 (1960).

11

See William E. Enright, 31 ECAB 426, 430 (1980).

12

B.S., supra note 3.

13

Lillian Cutler, 28 ECAB 125 (1976).

14

Jeral R. Gray, 57 ECAB 611 (2006).

15

See John Polito, 50 ECAB 347 (1999).

4

`
The Board notes that appellant submitted new evidence after the issuance of the
March 20, 2014 decision. The Board lacks jurisdiction to review evidence for the first time on
appeal.16 Appellant may submit this or any 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 that she
suffered a stroke in the performance of her federal duties on January 9, 2014, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 20, 2014 is affirmed.
Issued: September 16, 2014
Washington, DC

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

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

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

16

See 20 C.F.R. § 501.2(c)(1).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Homewood, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0594
Issued: July 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 21, 2015 appellant filed a timely appeal of a December 17, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
on March 12, 2014 in the performance of duty.
FACTUAL HISTORY
On March 21, 2014 appellant, then a 58-year-old assistant clerk, filed a traumatic injury
claim alleging that on March 12, 2014 she developed stress due to her employment duties.
1

5 U.S.C. § 8101 et seq.

Appellant stated on March 12, 2014 she took mail to the front desk of the employing
establishment and asked a coworker, W.M., to please take this mail out when she picked up the
delivered mail. She stated, “I turned and took about two steps when she asked very aggressively
‘Why you telling me that?’” Appellant responded that the task was part of the front desk duties.
W.M. stated that collecting mail was not part of her duties and that appellant should perform the
task herself. Appellant then asked why W.M. was being rude. She stated, “She jumped up and
came over the desk, putting her finger in my face, and began yelling that I was a hypocrite –
repeating it several times.” Appellant asked W.M. what she had done to her. W.M. instructed
appellant to look into the mirror and stated that she would see a hypocrite looking back.
Appellant alleged that W.M. was waving her hands and jerking her head. She stated that W.M.
continued to yell at her as she walked away.
Appellant sought out her supervisor, B.T. and relayed the conversation to him. B.T.
promised to investigate the incident. Appellant left his office and heard W.M. exclaiming that
she did not work for her and that she had no business telling her what to do. She denied the
coworker’s allegation in this conversation that she had slammed the mail down and ordered her
to take the mail out. Appellant also overheard another coworker, C.C., state that she had
presented her supervisors with an e-mail that appellant had sent her and stated that she did not
work for her. J.D., also a coworker, stated that appellant should not have been moved from her
former position and that all she had done was to cause trouble in her current position.
Appellant stated that she was a professional and did not bully her coworkers. She noted
that the following day, the district manager, held a meeting and instructed the employees to “get
along and treat each other as professionals.” Appellant alleged that W.M. was the office bully
and had mistreated other coworkers. She stated that she had very few peers in the office that
would talk to her. Appellant stated that she believed that W.M., C.C., and J.D. hated her. She
asserted that she believed that W.M. was capable of violence and that she frightened her on
March 12, 2014. Appellant stated that she was depressed and anxious due to bullying and
gossip.
Dr. Daniel A. McKeever, a psychologist, examined appellant on March 21, 2014 and
found that she was totally disabled due to complex post-traumatic stress disorder as she was
harassed and bullied by fellow employees. He also stated that she did not receive support from
her supervisors. Dr. McKeever diagnosed clinical depression. In a form report dated March 27,
2014, he diagnosed post-traumatic stress disorder due to verbal abuse from a coworker on
March 12, 2014. Dr. McKeever stated that appellant was threatened and emotionally bullied.
He stated that this event caused her to emotionally fall apart and triggered post-traumatic stress
disorder.
In letters dated April 2, 2014, OWCP requested additional information from appellant
and the employing establishment. Appellant responded and stated that the March 12, 2014 event
was much more than a raised voice conversation. She stated that W.M. jumped up and lunged at
her over the desk and shoved her finger into her face. Appellant reported that W.M. began
yelling very loudly that she was a hypocrite and repeated this allegation several times. She
alleged that W.M. had screamed and pounded the desk with her fists at three other employees.
Appellant stated that she witnessed these other incidents and was afraid that W.M. would hurt

2

her. She reported the statements from J.D. and C.C. after the meeting with her supervisor and
added that C.C. stated that appellant and two of her coworkers, B.N. and M.W. were “a gang.”
The employing establishment responded to OWCP’s request for information on
March 28, 2014 and alleged that appellant’s recitation of the events of March 12, 2014 was not
completely factual. Appellant’s supervisor stated that the results of an investigation by the
employing establishment found that there was an exchange of words between the employees. He
suggested that appellant used profanity in her response to W.M. noting that appellant’s statement
“does not indicate that she used profanity in her response to [W.M.,] and that each party had
raised their voice to each other.” The supervisor stated that it was the employing establishment’s
opinion that appellant had instigated the confrontation with W.M. and that W.M. responded
inappropriately. He concluded that both parties involved appeared to have conducted themselves
in an inappropriate manner for the workplace.
Appellant’s supervisor stated that appellant used profanity to him when she requested his
presence following the incident with W.M. He further stated that she yelled at him in front of the
entire management staff and that he requested that the conversation be moved to his office due to
her profanity and aggressive nature. The supervisor acknowledged that appellant later
apologized for her tone and the language content used while addressing him.
Appellant’s supervisor also stated that appellant’s allegation that W.M. was a bully and a
menace had not been found as substantiated by the employing establishment. He noted that
W.M. had been the consummate professional to her coworkers and managers and that she had
been targeted by the conference litigation representative staff including appellant. The
supervisor noted that appellant had not reported the remainder of her allegations regarding her
coworkers to the employing establishment. He reported that an altercation did occur between
C.C. and M.W. during lunch on March 12, 2014, but that there was no indication during the
resulting investigation into this incident that appellant had overheard any conversations with
J.D., C.C., and W.M. concerning her behavior. The supervisor concluded that the employing
establishment was not aware of all interactions between employees and was not aware that
appellant was ostracized by her coworkers.
On April 23, 2014 appellant’s supervisor controverted appellant’s claim and again
asserted that she instigated the confrontation and that W.M. responded in an inappropriate
manner. He concluded that both parties conducted themselves in a manner inappropriate for the
workplace. The supervisor stated that the investigation revealed that appellant was the aggressor
and “bully.” He alleged that she bullied him in the manner in which she requested his presence
and that she used profanity. Appellant’s former supervisor confirmed that appellant had been
verbally counseled regarding outbursts and her “bullying” personality in the office work space.
The supervisor alleged that the employing establishment management did everything in its power
to bring a quick resolution to the March 12, 2014 event and took appropriate action.
In a statement dated May 4, 2014, appellant stated that W.M.’s harassing conduct had
been reported to management on numerous occasions and that no action had been taken against
her. She alleged that she was afraid of W.M. with good reason.

3

By decision dated May 8, 2014, OWCP denied appellant’s claim for a traumatic
emotional condition. It noted that she had not provided any witness statements or other evidence
corroborating her version of the events of March 12, 2014. OWCP stated that appellant’s
supervisor disputed appellant’s version of events and asserted that she had instigated the
confrontation. It found that she was not verbally abused, but that she was involved in a
confrontation in which she was an active participant. OWCP further found that appellant had not
established that the employing establishment failed to take appropriate actions against W.M. or
committed error or abuse in the actions taken.
Following OWCP’s May 8, 2014 decision, appellant submitted a statement from M.W.
She alleged that W.M. was “mean and hateful.” M.W. indicated that W.M. stated and did what
she pleased and was not reprimanded by management. She indicated that she did not observe
appellant’s discussion with W.M., but believed that there was reverse discrimination tolerated at
the employing establishment.
Appellant requested a review of the written record by an OWCP hearing representative
on May 27, 2014. Dr. Neal L. Presant, a physician Board-certified in occupational medicine,
submitted a report dated September 25, 2014 addressing her application for disability retirement
to the Director of the Office of Civil Rights. He stated that appellant could not return to her
current office under any circumstances. Dr. Presant stated, “There is even a potential threat of
violence if she returned to that office.” He stated that reassignment to a different office could be
a viable option.
In a January 2014 statement, appellant submitted additional evidence and alleged that she
witnessed an attack by W.M. on T.L. She stated that the current district manager, informed her
on October 16, 2014 that he felt that W.M. attacked appellant in retaliation for reporting the
attack on T.L. Appellant alleged that W.M. ensured that there were no witnesses to her
altercations. She explained that on March 12, 2014 she took three letters to W.M.’s desk as all of
the administrative assistants were using leave. Appellant stated that W.M. was filling in as an
administrative assistant and as part of those duties was to take the mail out and bring the mail in.
She stated that it was her job to put postage on all outgoing mail. Appellant placed the postage
on three letters and took them to W.M.’s desk. She advised W.M. that the letters were on her
desk. Appellant denied that she was rude, aggressive, or confrontational. She alleged that W.M.
turned on her like a wild animal and that her face was so close to appellant that she could “smell
her breath and her spittle was spewed all over [her] face.” Appellant admitted that she used the
word “shit” when she approached her supervisor and noted that her voice was likely raised. She
stated that she apologized to her supervisor and others present. Appellant stated that there was
no extensive investigation into the incident on March 12, 2013 and that she was never counseled
for a “bullying attitude.”
Appellant submitted an e-mail dated November 7, 2013 from B.N., who alleged that she
was also attacked by W.M. B.N. alleged that their supervisor did not write the response letter to
appellant’s claim and had only worked at the employing establishment for two weeks prior to
March 12, 2014.
In a letter dated November 25, 2014, the supervisor stated that appellant did not follow
protocol by placing the mail in the mailroom so it could be taken to the mailbox, but instead

4

chose to take the mail to W.M. at the front desk and that this is what initiated the confrontation.
He again stated that appellant used profanity when speaking with him and yelled at him. The
supervisor stated that an extensive investigation was done by management as well as an
independent outside investigator. He stated that there was an issue that seemed to be divided
between different departments including the conference and litigation department and the special
investigation department. He stated that B.N. e-mail illustrated the paranoia about the division
fueled by appellant, B.N. and M.W. The supervisor stated, “It was determined that there is not
an individual who can be held responsible for the event that occurred on March 12, 2014 as it
appeared that both parties acted inappropriately.”
In a report dated October 22, 2014, Dr. McKeever stated that he first treated appellant on
August 6, 2009 and diagnosed post-traumatic stress disorder, severe depression with psychotic
features, acute panic disorder, and atypical anxiety disorder as a result of work incidents that
occurred at the time. Appellant filed and settled an Equal Employment Opportunity complaint
regarding those events. Dr. McKeever stated that the events of March 12, 2014 aggravated her
previously diagnosed conditions.
By decision dated December 17, 2014, an OWCP hearing representative reviewed all the
evidence submitted and found that appellant had not established verbal abuse, discrimination, or
harassment. She found that the facts did not support appellant’s allegations and that she had not
established any compensable factors of employment which could have contributed to her
diagnosed emotional condition. The hearing representative stated that appellant established that
she was involved in an altercation with a coworker on March 12, 2014, but that this incident did
not give rise to compensable verbal abuse. She stated that appellant provide no evidence that
W.M. was the aggressor or that incident occurred as alleged. The hearing representative also
found that appellant’s supervisor asserted that appropriate action was taken by the employing
establishment. She found that appellant had not submitted any evidence that W.M. was violent
or bullied coworkers in the past.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
2

28 ECAB 125 (1976).

3

U.S.C. §§ 8101-8193.

4

See Robert W. Johns, 51 ECAB 136 (1999).

5

by the employing establishment or by the nature of the work.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person injury sustained in the performance of duty within the meaning of FECA. Thus,
disability is not covered when it results from an employee’s fear of a reduction-in-force nor is
disability covered when it results from such factors such as an employee’s frustration in not
being permitted to work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.7 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.8 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.9
The Board has recognized that verbal altercations when sufficiently detailed by the
claimant and supported by evidence may constitute compensation employment factors.10 Not
every statement uttered in the workplace will give rise to coverage under FECA.11
Harassment is defined as a persistent disturbance, torment, or persecution, i.e.,
mistreatment by coemployees or workers.12 For harassment or discrimination to give rise to a
compensable disability under FECA, there must be evidence that harassment or discrimination
did, in fact, occur. Mere perceptions of harassment or discrimination are not compensable under
FECA. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. To establish entitlement to benefits, a
claimant must establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.13

5

Cutler, supra note 2.

6

Id.

7

Charles D. Edwards, 55 ECAB 258 (2004).

8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
9

Roger Williams, 52 ECAB 468 (2001).

10

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

11

V.W., 58 ECAB 428 (2007).

12

D.G., Docket No. 14-1796 (issued January 16, 2015); Beverly R. Jones, 55 ECAB 411 (2004).

13

Alice M. Washington, 46 ECAB 382 (1994).

6

ANALYSIS
Appellant has not attributed her emotional condition to her job duties as an employee
under the precedent set forth in Cutler. Rather, she contends that she experienced stress as the
result of a verbal altercation with a coworker, W.M., and she further alleged harassment,
bullying, and gossip by coworkers.
Appellant has provided a detailed statement regarding the events of March 12, 2014
including W.M.’s tone, specific words, and physical actions regarding the disagreement on
March 12, 2014. However, she has failed to provide any evidence corroborating her version of
events. Appellant’s supervisor at the employing establishment stated that an investigation
supported that both employees acted inappropriately without providing any other details. The
Board has held that being spoken to in a loud or harsh tone does not in itself constitute verbal
abuse or harassment.14 The employing establishment’s finding that both she and appellant acted
inappropriately is insufficient to establish a compensable factor of employment. In a similar
case, M.L.,15 the claimant alleged that a coworker yelled at her that she was not his boss, came
close to her, and made gestures which she believed to be threatening. The Board found in that
case that the evidence of record was insufficient to establish a compensable work factor based on
verbal abuse as the only evidence of alleged verbal abuse consisted of the claimant’s statements
with no corroborative evidence. Likewise in this case, appellant has submitted no corroborative
evidence that W.M. verbally abused her, made threatening gestures, or actually spat in
appellant’s face. Due to the lack of supportive factual evidence, the Board finds that appellant
has not established a compensable factor of employment in this regard.
The remainder of appellant’s allegations concern her perception that she worked in a
hostile work environment and was harassed by fellow employees. For example, she listed
numerous conflicts, listed statements that coworkers made behind her back, and asserted that she
was subjected to bullying and gossip. Personal perceptions alone are insufficient to establish an
employment-related emotional condition due to harassment.16 Furthermore, the Board has held
that an emotional reaction to gossip in the workplace represents a personal frustration unrelated
to one’s duties and is not compensable.17 In Gracie A. Richardson,18 the claimant had become
romantically involved with a coworker. She alleged, among other things, that she was
devastated to think that coworkers were gossiping behind her back regarding her marital and
other personal relationships. The Board found that an emotional reaction to gossip was not a
compensable factor of employment.

14

R.T., Docket No. 13-1665 (issued September 12, 2014).

15

Docket No. 12-738 (issued November 6, 2012).

16

L.G., Docket No. 14-1054 (issued October 21, 2014).

17

Supra note 14.

18

42 ECAB 850 (1991).

7

The Board finds that appellant has not submitted sufficient corroborative evidence to
substantiate her allegations of verbal abuse or harassment. For these reasons she has not
established a compensable factor of employment and thus did not meet her burden of proof.
Where a claimant has not established any compensable employment factors, the Board
need not consider the medical evidence of record.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition on March 12, 2014 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 8, 2015
Washington, DC

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

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

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

19

A.K., 58 ECAB 119 (2006).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Baton Rouge, LA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 10-84
Issued: July 14, 2010

Case Submitted on the Record

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

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from an August 4, 2009 merit
decision of the Office of Workers’ Compensation Programs. 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 has established a lumbar injury causally related to factors
of her federal employment.
FACTUAL HISTORY
On June 16, 2008 appellant, then a 37-year-old security screener, filed an occupational
disease claim (Form CA-2) alleging that she sustained an employment-related lumbar injury.
She described her condition as bulging L4-5 and L5-S1 discs, with L5-S1 radiculopathy.
Appellant indicated that she initially sustained an injury on March 23, 2006, had pain the

following day and requested a low back injury be “added to claim.”1 She reported that she
became aware of the injury on March 27, 2006.
In a statement dated October 31, 2008, appellant reiterated that she wanted a low back
injury “added” to her claim. She discussed her prior claim and medical treatment. Appellant
stated that her job as a screener was strenuous and repetitive, including lifting of bags. She
described the March 23, 2006 incident and stated, “I know that my low-back injury is the result
from the injury….”
In a report dated August 18, 2008, Dr. David Muldowney, an orthopedic surgeon,
provided a history of a back injury on March 23, 2006 that “progressively worsened.” He listed
the results on examination and diagnosed lumbar degenerative disc disease. In a report dated
September 10, 2008, Dr. Daniel Hodges, a physiatrist, addressed findings on examination and
diagnosed “on-the-job injury with multilevel cervical changes with progressive mechanical low
back pain.”
In a February 10, 2009 decision, the Office denied the claim for compensation. It found
the factual and medical evidence was insufficient to establish that appellant’s back condition was
due to her employment as a security screener.
Appellant requested a telephonic hearing before an Office hearing representative, which
was held on June 11, 2009. In an April 30, 2009 letter, she reported that she stopped work in
April 2007 because her condition “was getting worse due to the lack of manpower on the job.”
Appellant stated that she still performed her job duties with the exception of hand wanding. In a
June 29, 2008 letter, the employer advised that, after the March 23, 2006 injury, appellant
returned to light-duty work, stopped work on April 9, 2006, returned to work on May 25, 2006
and was off work from April 15, 2007 to June 1, 2008.
By decision dated August 4, 2009, an Office hearing representative affirmed the
February10, 2009 decision. He found that the medical evidence of record was not sufficient to
establish that appellant’s lumbar degenerative disease was either due to the March 23, 2006
incident or to other factors of her federal employment.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
1

Appellant filed a traumatic injury claim on March 23, 2006 when she was pulling a bag through an x-ray
machine. Under OWCP File No. xxxxxx741, the claim was accepted for cervical sprain/strain, and left shoulder and
arm sprain/strain. By decision dated October 17, 2008, the Office denied claims for compensation commencing
June 2008, finding the medical evidence did not establish a lumbar condition causally related to the March 23, 2006
injury. By decision dated May 20, 2009, an Office hearing representative affirmed the October 17, 2008 decision.
In a June 24, 2010 decision, the Board affirmed the denial of appellant’s claim for a recurrence of disability
commencing June 6, 2008.
2

5 U.S.C. §§ 8101-8193.

2

alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (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 diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
Appellant filed an occupational disease claim, which is a claim for an injury occurring
over more than one workday or shift.8 Appellant noted a history of a prior lumbar injury on
March 23, 2006. To the extent appellant sought expansion of her traumatic injury claim to
include the diagnosed degenerative disease, the Office hearing representative properly noted that
she could pursue the matter under that claim number.
To establish an occupational disease claim, appellant must submit a factual statement
identifying the employment factors alleged to have contributed to her condition. She has not
submitted a detailed factual statement in this regard. Appellant generally referred to a worsening
condition, without specifically describing the nature, extent and duration of the job duties, she
believes caused or aggravated her lumbar condition. Moreover, she must submit rationalized
medical evidence that includes a complete factual and medical history, and a reasoned opinion
on causal relationship between the diagnosed lumbar condition and the identified employment
factors. The medical evidence does not include a rationalized medical opinion. Dr. Hodges
referred generally only to a work injury without providing additional detail. He did not address
how any work duties would cause or contribute to her degenerative lumbar disease.
3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See Robert G. Morris, 48 ECAB 238 (1996).

6

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

20 C.F.R. § 10.5(q) (2008).

3

Dr. Muldowney similarly made reference to the prior traumatic injury of March 2006. He did
not clearly explain how appellant’s work as a security screener would contribute to her lumbar
disease.
The Board finds that appellant did not submit the necessary evidence to establish her
claim. In the absence of a detailed factual statement regarding employment factors and medical
evidence on causal relationship, the Office properly denied her occupational disease claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
lumbar degenerative disease is causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 4, 2009 is affirmed.
Issued: July 14, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 09-1503
Issued: April 15, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On May 11, 2009 appellant, through her attorney, filed a timely appeal from
September 5, 2008 and January 21, 2009 merit decisions of the Office of Workers’
Compensation Programs denying her claim for disability compensation. 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 has established that she was disabled from March 15 to
September 28, 2007 due to her accepted condition of bilateral carpal tunnel syndrome.
FACTUAL HISTORY
On December 19, 2007 appellant, then a 53-year-old distribution clerk, filed an
occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome as a result
of performing repetitive employment duties.1
1

On December 20, 2007 the employing establishment controverted the claim, noting that the medical evidence
submitted by appellant had already been considered by the Office under file number xxxxxx225.

In a report dated March 20, 2007, Dr. Mark A. Filippone, a Board-certified physiatrist,
examined appellant for work injuries sustained on March 10, 2007. He noted that she last
worked on March 15, 2007. On physical examination, Dr. Filippone found a positive Tinel’s
sign over the right ulnar nerve and left median nerve. He diagnosed a generalized anxiety
disorder, generalized post-traumatic stress disorder (PTSD), a repetitive stress disorder of the
upper extremities and to rule out carpal tunnel syndrome, ulnar neuropathy, brachial plexopathy
and cervical radiculopathy. Dr. Filippone opined that appellant was disabled from employment.
On April 9, 2007 Dr. Filippone related that he initially treated appellant on March 20,
2007 for symptoms of high blood pressure after a disagreement with her supervisor on
March 10, 2007. When she returned to work on March 15, 2007 she again had chest pain,
numbness and tingling in her left hand. Appellant received treatment at the hospital.
Dr. Filippone discussed her current complaints of numbness and tingling in her hands, anxiety
and depression. On examination, he found a positive Tinel’s sign and positive left Phalen’s test.
Dr. Filippone diagnosed generalized anxiety disorder, PTSD and a repetitive stress disorder of
the upper extremities. He asserted that appellant was totally disabled and that “all of the above
abnormalities are directly and solely the result of the injuries sustained while at work for the
[employing establishment] on March 10, 2007.”
On May 31, 2007 Dr. Filippone noted that electrodiagnostic studies performed April 23,
2007 revealed severe bilateral carpal tunnel syndrome. He found that appellant had a bilateral
positive Tinel’s sign and Phalen’s test and “partial atrophy in the thenar eminences bilaterally.”
Dr. Filippone discussed her history of repetitive use of the hands for 22 years casing mail and
asserted that he was “totally unable to allow [her] to return to work casing mail….”
By decision dated March 12, 2008, the Office denied appellant’s claim on the grounds
that the factual and medical evidence was insufficient to establish that she sustained an injury as
alleged.
On March 18, 2008 appellant, through her attorney, requested an oral hearing. At the
hearing, held on July 15, 2008, she described her work duties for the past 20 years. Counsel
argued that the medical evidence was sufficient to establish carpal tunnel syndrome.
In a form report dated August 23, 2007, received by the Office on July 30, 2008,
Dr. Filippone diagnosed bilateral carpal tunnel syndrome and repetitive stress disorder of the
upper extremities. He checked “yes” that the condition was caused or aggravated by
employment and found that appellant was totally disabled beginning March 16, 2007.
By decision dated September 5, 2008, the hearing representative affirmed in part and
reversed in part the March 12, 2008 decision. She found that the medical evidence from
Dr. Filippone was sufficient to establish that appellant sustained bilateral carpal tunnel syndrome
due to her employment duties. The hearing representative concluded, however, that the evidence
was insufficient to show that she sustained any disability due to the accepted work injury.
On September 16, 2008 the Office advised appellant that it had accepted her claim for
bilateral carpal tunnel syndrome.

2

On October 21, 2008 Dr. Filippone noted that appellant continued to work limited-duty
employment. He related that he had previously found her disabled from work when he evaluated
her on March 20, 2007 following a March 10, 2007 work injury. Dr. Filippone stated:
“Please note that my initial consultation of March 20, 2007 indicates an
impression of general anxiety disorder, generalized [PTSD], repetitive stress
disorder of both upper extremities including to rule out carpal tunnel syndrome,
rule out ulnar neuropathy, rule out brachial plexopathy and rule out cervical
radiculopathy, and, thus, I have been excusing her from work for a diagnosis that
includes carpal tunnel syndrome since my initial examination of that date. Please
see my [April 23, 2007] note, specifically paragraph four wherein it is stated that
[appellant] continues with the same symptoms referable to the injury of March 10,
2007; except for the increasing pain at the base of the left thumb.”
On November 4, 2008 Dr. Filippone reviewed his treatment of appellant and the
September 28, 2007 EMG findings of bilateral carpal tunnel syndrome. He related that appellant
was disabled due to her employment injuries from March 15 to September 28, 2007.
Dr. Filippone asserted that the “diagnosis of carpal tunnel syndrome was clearly the reason” for
her disability from April 23 to September 28, 2007.
On November 13, 2008 appellant, through her attorney, requested reconsideration.2 By
decision dated January 21, 2009, the Office denied modification of its September 5, 2008
decision.3
On appeal, appellant’s attorney asserts that Dr. Filippone’s reports are sufficient to either
establish that appellant was disabled due to her carpal tunnel syndrome from March 15 through
September 28, 2007 or to warrant further development of the medical evidence.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act4 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.5 For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled for work as a result of the accepted employment injury.6
Whether a particular injury caused an employee disability for employment is a medical issue
which must be resolved by competent medical evidence.7 The fact that a condition manifests
2

On November 25, 2008 Dr. Filippone released appellant to return to full-time limited-duty employment.

3

In its discussion of the evidence, the Office cited the “clear evidence of error” standard applicable to untimely
requests for reconsideration. However, as the Office reviewed the evidence on its merits, any error is harmless.
4

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

5

Paul E. Thams, 56 ECAB 503 (2005).

6

Sandra D. Pruitt, 57 ECAB 126 92005); Dennis J. Balogh, 52 ECAB 232 (2001).

7

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

3

itself during a period of employment does not raise an inference that there is a causal relationship
between the two.8
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow an employee to self-certify their disability and
entitlement to compensation.9
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility to see that justice is done.10
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome based on the
reports of Dr. Filippone, her attending physician. In a report dated March 20, 2007,
Dr. Filippone diagnosed an anxiety disorder, PTSD, a repetitive stress disorder of the upper
extremities and noted the need to rule out other conditions including carpal tunnel syndrome. On
examination, he found a positive Tinel’s sign on the right and a positive Phalen’s test on the left.
Dr. Filippone asserted that appellant was unable to work. On April 9, 2007 Dr. Filippone
diagnosed an anxiety disorder, PTSD and a repetitive stress disorder of the upper extremities.
He found that she was totally disabled and attributed her conditions to injuries sustained at work
on March 10, 2007. On May 9, 2007 Dr. Filippone discussed appellant’s history of repetitive use
of her hands for 22 years casing mail and opined that she was unable to continue to case mail. In
an August 23, 2007 form report, he diagnosed bilateral carpal tunnel syndrome and a repetitive
stress disorder of the upper extremities. Dr. Filippone checked “yes” that the condition was
caused or aggravated by employment and found that appellant was disabled from work as of
March 16, 2007. On October 21, 2008 he asserted that he found appellant disabled from work in
his March 20, 2007 report due in part to her diagnosis of carpal tunnel syndrome. On
November 4, 2008 Dr. Filippone related that she was disabled from March 15 through
September 28, 2007 due to her employment injuries. He asserted that the diagnosed condition of
carpal tunnel syndrome was “clearly the reason” for finding her disabled from April 23 to
September 28, 2007.
On appeal, appellant’s attorney argues that Dr. Filippone’s reports are sufficient to
establish her claim or to warrant further development of the evidence. Proceedings under the Act
are not adversarial in nature, nor is the Office a disinterested arbiter. While the claimant has the
burden to establish entitlement to compensation, the Office shares responsibility in the
development of the evidence to see that justice is done.11 The Board has reviewed
8

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007).

9

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

J.B., 60 ECAB ___ (Docket No. 08-1735, issued January 27, 2009); Jimmy A. Hammons, 51 ECAB
219 (1999).
11

A.A., 59 ECAB ___ (Docket No. 08-951, issued September 22, 2008); Phillip L. Barnes, 55 ECAB 426 (2004).

4

Dr. Filippone’s reports and notes that he provided an unequivocal opinion that appellant’s work
duties caused the diagnosed condition of bilateral carpal tunnel syndrome and resulted in
disability from employment during the time in question. He based his diagnosis of disabling
carpal tunnel syndrome on objective findings of a positive Phalen’s test on the left and a positive
Tinel’s sign on the right side. Dr. Filippone evidenced a thorough knowledge of appellant’s
work duties before finding that she was unable to perform her usual work duties of casing mail
due to her bilateral carpal tunnel syndrome. His opinion is supportive, unambiguous, bolstered
by objective findings and based on a firm diagnosis and an accurate work history.
Dr. Filippone’s opinion lacks only an explanation of why appellant’s diagnosed condition
prevented her from performing her specific work duties. Consequently, while the medical
evidence from Dr. Filippone is not sufficiently rationalized to meet her burden of proof to
establish that she was disabled from March 15 to September 28, 2007 due to her carpal tunnel
syndrome, it raises an undisputed inference of causal relationship sufficient to require further
development by the Office.12 Accordingly, the Board will remand the case to the Office. On
remand, the Office should further develop the medical record to determine whether appellant was
disabled from employment during this period due to her accepted work injury. Following this
and such further development as the Office deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 21, 2009 and September 5, 2008 are set aside and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: April 15, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6